Making redundancies is a reality that many companies going through financial difficulties have to make.
Following the changes to National Insurance and the National Minimum Wage, redundancies are on the rise in the UK, with research finding that almost a third [of businesses] plan to reduce their headcount through redundancies or recruiting fewer workers.
Even when taking urgent action to cut costs, employers still need to follow the proper procedures when it comes to making redundancies to ensure that they are abiding by the law.
Can An Employee Be Made Redundant Whilst On Sick Leave?
The short answer to this question is yes, employees can be made redundant while on sick leave.
That said, an employee can’t be made redundant because of their illness if that illness constitutes a disability, as this would be considered discriminatory.
If you find your business in a situation where it’s necessary to make redundancies, it’s essential that you carry out a consultation and follow the right procedures.
What’s more, employees with long-term illnesses may be classed as disabled under the Equality Act 2010. Under these circumstances, employers are legally required to make reasonable adjustments, such as modifying a job role or offering alternative work, before redundancy is considered.
Employers may need to consider making reasonable adjustments to the redundancy selection procedure to ensure that any dismissal is not discriminatory.
Due to the significant compensation that can be awarded if a dismissal is found to be discriminatory, it is highly advisable to seek legal advice from an employment solicitor to ensure that you are following the proper processes.
How To Handle The Redundancy Of An Employee On Sick Leave As An Employer
Employers must take care when handling redundancies, but this is especially important when handling redundancies for employees on sick leave.
To carry out a fair redundancy process as an employer, you should:
- Inform employees that they are at risk of redundancy
- Follow a fair and reasonable consultation process
- Seek legal advice
- Use proper selection criteria
- Consider other alternatives and be prepared to make reasonable adjustments
1. Inform Employees That They Are At Risk Of Redundancy
Employers must inform their employees that they are at risk of redundancy as soon as they can.
If an employee is on sick leave, employers should make sure that the employee also receives the same information as those who are at work.
An employer could be discriminating against a sick employee if they’re off sick and fail to provide them with the same information as their colleagues in work.
This might arise if an employee’s sick leave arises due to pregnancy or a disability.
2. Follow A Fair & Reasonable Consultation Process
You will also need to follow a fair and reasonable consultation process. If 20 or more employees are being made redundant, or if you recognise a trade union, you will need to engage with the trade union and/or employee representatives.
If 20 or more employees are being made redundant, you must ensure that you comply with the requirements of the Trade Union & Labour Relations (Consolidation) Act 1992 in relation to collective redundancies, including the minimum period of consultation of 30 days (longer if more than 100 employees are being made redundant).
When an employee is too sick to attend meetings in person, you should offer alternative methods, such as visiting them in person, video conferencing, phone meetings, or offering a written consultation.
During the consultation, you will need to explain the redundancy process as well as the selection criteria that impacted employees will be assessed against, and details of their redundancy notice and pay. You need to be prepared to consider alternatives and provide information regarding how you have assessed an individual against the specific selection criteria.
Can You Make Someone Redundant Without Notice?
Yes, but only under certain circumstances. You can make someone redundant without notice, provided that ‘payment in lieu of notice’ is included in the contract or the employee in question agrees to it.
In this situation, you, as the employer, will make a payment in lieu of notice as an alternative to the employee working out their notice period.
3. Seek Legal Advice
Dismissal on sick leave is a complex part of employment law, and employers must follow a fair and reasonable process.
As such, if you’re unsure about whether you’re within your rights to make an employee redundant, then it’s important to seek legal advice from an employment solicitor.
At Harding Evans, our solicitors will help you to take a strategic approach when it comes to redundancies.
Get in touch with a member of our team to find out how we can help.
4. Use Proper Selection Criteria
When it comes to making individual redundancies, employers must select employees fairly by applying pre-determined redundancy criteria.
The criteria could be based on objective measures such as the standard of work, qualifications, and more.
Where more than one individual is impacted, the employee should be included in a selection pool with other employees in similar positions to assess against set criteria to select those who will be made redundant.
A redundancy is likely to be unfair if the employer targets an employee for redundancy due to their sickness absence as opposed to legitimate business reasons, such as if your business is closing or you don’t need them to do their job anymore.
Sometimes sickness absence can be a legitimate selection criterion, but care needs to be taken to exclude pregnancy or disability related absence.
5. Consider Other Alternatives & Be Prepared To Make Reasonable Adjustments
As we mentioned above, it’s important to consider alternative job roles within the company before making a final decision on redundancy.
If there are other suitable positions available for the employee(s), then you must offer them before going ahead with redundancy.
What’s more, an employee must make reasonable adjustments to a role if the employee is disabled.
If there is a job that an employee could do, but you don’t offer it, this could mean that the dismissal is unfair or discriminatory.
How We Can Help
At Harding Evans, our expert employment solicitors can help ensure that you follow the proper procedures and comply with the law regarding redundancies.
No matter the situation, our team will help to ensure you reach the best possible outcome.
Get in touch with a member of our team today to find out how we can assist your business.
