Q&A - Can off sick employee be made redundant?

14/09/2009

Q: I am a University lecturer. Due to increased workload I have been off work for the last two semesters with stress. The University has now announced it is looking to make redundancies among teaching staff. My husband says I shouldn’t worry because they can’t make people redundant who are off on long term sick leave or maternity leave. Is this true?

A: Being on sick leave means someone is not fit to work; it does not mean they cannot be given notice of redundancy. Therefore the University is quite entitled to make staff redundant whilst they are off sick, and similarly if they are off on maternity leave. The question is whether in law it is considered “fair” or not. In other words the employer must be able to prove that the sick leave or maternity leave is not the reason for redundancy.

In order to dismiss an absent employee fairly the University would have to contact them and consult with them about the fact that redundancies are scheduled to take place and explain their position.  The employee would need to be given the opportunity to make suggestions about alternative ways of re-organising the work to make it manageable. The timescale for this process of consultation would have to be adapted to allow the sick, absent employee the chance to have their say.

When it comes to the selection process for redundancies, employers often use a scoring matrix where each aspect of the employee’s work would be marked. This may include a mark for sickness absence, but the employee could argue that any absence caused by work should be excluded from the scoring system.

Your particular illness may have affected your work in other ways so it is important to try as far as you can to make sure it does not count against you in the scoring system.

Robert Williams

Robert Williams

Partner

A Partner and Head of the Civil Litigation, Personal Injury and Dispute Resolution team in Wrexham

Nicholas Kennan

Nicholas Kennan

Solicitor

Specialist in Commercial Litigation and Employment in Oswestry