Can you make someone redundant when they are off sick?
I thought I would write about this topic as it is something that has cropped up (by coincidence) with several of my employer clients over the past few weeks. In particular, we have come across several situations where the employee avoids attending consultation meetings, is then signed off work with stress and refuses to attend any meetings, which then makes it difficult for an employer to follow a process.
The short answer to the question is yes, you can make someone redundant when they are off sick – but as with any dismissal, you are taking a risk, and how big that risk is will depend on the circumstances. For example, if you have a situation where a whole site is closing, that will be very different from a situation where you are having to select staff from a pool in order to determine who will be redundant, or when alternative roles are subject to an interview process.
The main thing to bear in mind to avoid an unfair dismissal claim is to act reasonably and follow a fair procedure in the circumstances. If an employee is off sick then your normal procedure may need to be adjusted. So for example, if someone is off sick with a broken leg, you could offer to go and see them at their home to carry out the consultation meetings.
With employees who are off work due to stress or mental health conditions, it can be more tricky because they may not be well enough to attend a consultation meeting at any location, and there may not be a clear indication of how long their recovery might take. There is no magic answer for dealing with situations like this, but tactics that might be worth trying include offering them the opportunity to comment in writing or by telephone, or perhaps through a representative.
If they are unable to (or refuse to) participate in any part of the redundancy process whatsoever, then the employer will need to take a view on whether they can wait for the employee’s health to improve, or whether they need to address the redundancy situation sooner. In addition to showing the genuine business reasons for the proposed redundancy and the reason why the situation cannot wait, if an organisation can show that they have acted reasonably, that they have given the employee opportunities to comment, and they have tried to make adjustments to the process to accommodate the employee’s ill-health, then it is highly likely that an Employment Tribunal would have sympathy with that.
In addition, even if a dismissal were found to be unfair on grounds of procedure, an Employment Tribunal can take account of the Polkey argument in assessing compensation. This is about the chance that even if the correct procedure had been followed, the outcome would have been the same. Our previous article on Polkey can be found here.
There is no doubt that situations like these can become messy, but if an employer acts reasonably then there can be a way through. We have helped a number of organisations deal with these kinds of matters, so do get in touch if we can help you.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or firstname.lastname@example.org).