Q: We lost a couple of big contracts and as a result we have been forced to make some redundancies in order to keep the company commercially viable. Most of the lads have been understanding about the situation but one worker who is renowned for being difficult and demanding his rights has gone off sick in the middle of the consultation period. His sick note cites stress and depression, which of course he claims is our fault. Are we legally within our rights to continue with the process of his redundancy?
A: You had already begun the redundancy consultation process before he went off sick so the worker cannot claim he is being made redundant because he is off sick. This is a key point for any employer wondering what happens if someone goes off sick during redundancy consultation. The redundancy must clearly be due to the role being no longer required, not due to sickness.
If he is unable to attend consultation meetings because he is not at work you are legally within your rights to supply the relevant information in writing, or you could conduct the meetings with him by phone or perhaps on Skype. It is not uncommon for employees to take sick leave during a redundancy consultation, often due to the stress and uncertainty of the process. That said, it does not prevent you from continuing the consultation as long as efforts are made to include them in a reasonable and sensitive way.
Commercial viability is a valid reason for redundancy and that is what you say has forced you to make the redundancy decision. It is the job not the worker that is being made redundant. You just need to demonstrate that your selection procedure has been fair, objective and non-discriminatory, as unfair selection for redundancy is a type of unfair dismissal – and someone who has been unfairly selected for redundancy may be able to claim compensation for unfair dismissal on top of redundancy pay.
If you’re asking, can I go off sick during redundancy consultation, the answer is yes, you can, but you remain part of the process. Employees on sick leave can still be consulted, and employers must make reasonable adjustments to ensure fairness. However, sickness during redundancy consultation doesn’t automatically pause or invalidate the process.
Employment law is one of the fastest changing areas of law and it might therefore, for absolute peace of mind, be in your best interest to make an appointment with a specialist employment lawyer who can go through your particular circumstances with you and advise you on all the steps you need to be taking.