Follow up

First redundancy consultation

[Letter]

Second redundancy consultation

[Letter]

Can you make a sick employee redundant?

Genuine redundancy

Whilst redundancy is one of the potentially fair reasons for dismissal set out in s.98 Employment Rights Act 1996 , it must be the genuine reason for an employee’s dismissal, you must act reasonably in treating it as a sufficient reason for dismissing that employee and you must follow a fair redundancy procedure. A fair procedure here includes: (1) meaningful individual consultation with affected employees; (2) a fair redundancy selection process; and (3) due consideration of alternative employment options. Depending on the number of redundancies involved, you may also be subject to statutory collective consultation obligations.

Pro advice. The three situations that can give rise to redundancy are: (1) a business closure; (2) a closure of the employee’s workplace; or (3) a diminishing requirement for employees to do particular types of work, either generally or at the employee’s workplace.

Pro advice. Redundancy must never be used as an excuse to dismiss a long-term sick employee. If it’s not a genuine redundancy, the dismissal will be unfair (if the employee has been employed for two years or more), and it may also constitute disability discrimination (regardless of length of employment). Even if it is genuine, it could still be unfair if you’ve failed to follow a fair procedure for the sick employee.

Fair redundancy procedure

Even though a long-term sick employee is absent from the workplace, you must treat them in the same way as other staff when it comes to a fair procedure. This means ensuring they are fairly selected for redundancy and fully including them in your consultation process.

Pro advice. Give the sick employee the opportunity to attend all individual and collective consultation meetings. If they’re too ill to attend the workplace, hold individual meetings remotely, e.g. by phone or video call, and provide similar facilities for participation in collective meetings. This might also constitute a reasonable adjustment for a disability, as might offering to hold meetings at their home.

Pro advice. Copy the sick employee in on all correspondence, such as meeting minutes, first consultation letters (see Follow up ), second consultation letters (see Follow up ), etc. Even if they don’t respond, still continue to involve them in the process as much as you can.

Pro advice. When selecting staff for redundancy, ensure that the sick employee isn’t marked down under an attendance criterion because of disability-related sickness absence. Any such absence should be disregarded. You might also need to adjust other selection criteria, e.g. in the case of a productivity criterion assessed over a period of, say, the previous twelve months, a sick employee who’s been absent for the last four months will be disadvantaged, as they won’t have had the same opportunity as other employees in the selection pool to demonstrate their productivity. In this case, consider choosing an alternative time period, or making changes to your scoring method, to remove that disadvantage.

Pro advice. Don’t be tempted to create selection criteria, or apply weightings, which are aimed at ensuring the sick employee is selected. This isn’t a fair process and leaves you open to the risk of an unfair dismissal and/or disability discrimination claim.

Pro advice. When considering the sick employee for alternative employment where you have more than one redundant employee who would be suitable for a vacant role, again don’t take account of their disability-related sickness absence in deciding to whom to offer the role; interview the employees and make an objective assessment on who’s the most suitable.

First redundancy consultation letter

Second redundancy consultation letter