Redundancy is always a bit of a sensitive process and when you have an employee who is on sick leave, it becomes even more complex. Employers have to do what they can to try and ensure that any redundancy decision is fair and that it is compliant from a legal standpoint. You also need to carefully document it so that you can reduce the risk of a claim being made against you.
Offering Redundancy When on Sick Leave
A big question employers tend to have is if they can make an employee redundant when on sick leave. Employment law doesn’t prevent redundancy because an employee is absent. The key factor, however, is to make sure that the redundancy process is both fair and genuine.
You also need to make sure that it is free from discriminatory motives. If you are dismissing someone because they are on long-term sick then this is unfair, especially if the illness is also a disability.
Offering Fair Redundancy
When handling redundancy for employees who are on long-term sick leave, employers have to make sure that they are following the same procedures that they would for other staff members. This includes consulting with them while providing clear and written communication. You also need to explain the situation and the timeline if you can.
The selection process should also be fair. You have to use objective criteria to choose employees for redundancy, and you also need to make sure that you are not disproportionately impacting people on sick leave. Explore alternatives to redundancy too, including flexible working, adjusted duties, and more. This will allow you to better accommodate your employee’s health condition, if possible.
Explore statutory or contractual notice, and make sure that you calculate the redundancy pay, if this is something the employee is entitled to, and explore the option of a disciplinary meeting if they have been off for an extended period of time.
Statutory Redundancy Pay & Sick Leave
Employees who are on long-term sick leave are entitled to statutory pay if they meet the criteria; they have to have given two years of service. Sick leave also does not reduce entitlement to redundancy pay. Employers should also make sure that their payments are calculated fairly and that they are always done in-line with legal requirements.
Stress-Related Absences
Redundancy can be sensitive if the absence is related to a health condition or even stress. As an employer, it’s your job to document the communication carefully and to seek health advice before you make your final decision. Ensure that the redundancy is not linked to the employee’s condition as well, if you can.
Duration of Sick Leave
There is no fixed period after which an employer can dismiss someone who is on long-term sick leave. If you dismiss because they have been absent for a very long time, then this can still be deemed as being unfair.
Employers have to consider the chance of the employee returning to work, the cost to the business that is having to maintain the role, and whether it is possible for reasonable adjustments to be made.
Offering voluntary redundancy or a settlement can also be an option if your employee has a possible new job lined up, or if they have expressed their will to leave at some point in the future.
Sick Leave during Redundancy Notice
Employees can remain on sick leave during their redundancy notice period. Employers have to continue to pay any sick pay during this time. You also cannot shorten the redundancy period because they are off sick, and maintaining legal entitlements is, again, important.
If you want to reduce the risk of a claim, then you have to make sure that you are following a transparent process. You also need to apply selection criteria on a consistent basis. You should consider things like redeployment, as well as any other adjustments, if you can. Maintain open communication with your team as well, even if they are on long-term sick leave.
Expert Employment Law Advice from Premier Legal
Redundancy during long-term sick leave is legally permissible, but you do have to make sure you navigate the process properly, and that you also make sure that you are having a fair and transparent process.
You also need to avoid issues by documenting your process and by making sure that you are not at risk of being sued for discrimination. If you can do this, then you will soon find that you can handle the sensitive nature of health-related absences. If you want some extra support for your team, then it is more than possible for you to get this.
If you want to find out more, then we encourage you to get in touch with us at Premier Legal. We have years of experience in the law industry, and we can support you with a range of HR services.
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Author
sarahrobinson@premier-legal.co.uk
Sarah Robinson is the Managing Partner and has specialised exclusively in employment law since qualifying as a solicitor in 1996.
Sarah has considerable experience of representing clients in many different industry sectors including insurance and financial services, corporate finance, technology, legal services, automotive, hotel and catering and media as well as the public sector.
Areas of particular interest include restrictive covenants, TUPE and advising in relation to discrimination.