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Case Studies

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The sickly feeling with being unfairly selected for redundancy

Published 03 February 2021
Production operative John was left feeling sick when first informed he had been selected for redundancy in a process he was convinced was unfair.

For any employee news of workplace redundancies can be extremely worrying and very unsettling.

In John’s case it was the unfair selection criteria for redundancy that really upset him.

John had worked for his employer for seven years. He was the only one from a selection pool of eight employees chosen for redundancy.

His sickness absence record was the key factor in him getting the lowest score.

John had suffered long-term with depression, which had forced him too take time off work.  

He argued it was unfair to use those absences against him, as his depression can be considered a disability.

The company refuted the claim and insisted it had acted properly and fairly.

After John was selected for redundancy he was told he would receive statutory redundancy pay

John appealed against his selection for redundancy. After his manager received the appeal letter he summoned John to a meeting.

John says he was effectively told the decision will not be changed. But, as a gesture of goodwill his employer offered to pay him £750 tax free if he signed a settlement agreement.

Accepting the offer and signing the agreement would bring the matter to an end, and it would have meant that John could not pursue a case for unfair dismissal or any other matters arising from his employment.

John was happy to reach an agreement, but said the offer was not enough. He said he was told in no uncertain terms by his manager it was a final offer.

After rejecting the offer John was invited to a redundancy appeal hearing.

Sickened by the manner in which he had been treated, John contacted the Castle Associates Employee Support Centre for help.

After discussing the case with John our representative requested a range of information from the employer in relation to the redundancy process.

The information requested included John’s absence record, a range of policies and the scores of the other employees in the same selection pool as John. The redacted scores were provided.

John’s absence record showed all of his absences in the last 12 months, the period considered in the selection process, were as a result of his depression.

As John had suffered with depression long term it can be considered a disability under the Equality Act 2010.

Prior to the appeal hearing our representative submitted a formal grievance on John’s behalf. It was on the grounds of disability discrimination based on the use of disability-related absences to unfairly select him for redundancy.

As the grievance, if upheld, would have ramifications for the redundancy process, our representative requested that the redundancy appeal be postponed until the grievance was resolved.

The company refused. It insisted it would hear the grievance on the same day as the redundancy appeal.

At the grievance hearing our representative asserted that the company had used a simplistic formula when calculating John’s absence, which failed to take account of the fact he had what can be considered a disability.

Our representative referred to the information he had requested and received prior to the hearing. He used it to demonstrate that all absences were counted equally and no adjustments made for John’s disability-related absences.

John’s absence record and documented reasons for his absences was highlighted to maintain that the company was aware, or should reasonably have been aware that he had what can be considered a disability.

Our representative asserted that with that knowledge the company should have made adjustments to take account of John’s disability-related absences, and the failure to do so was discriminatory.

The redundancy appeal was heard straight after the grievance hearing. It led to a discussion and later negotiation about a settlement agreement.

An agreement was later reached, which included John being paid a five-figure tax free lump sum.

 

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