Redundancy whilst on sick leave

waveneygnome

I work for a small company, and one of my colleagues has been off sick for the past 7 months.

He is employed 1 day a week (he works at other jobs, but is off from them on sick leave also).

We are all picking up his tasks....and amazingly coping very well without him! We all like him and get on well, but our general workload has dropped, so my boss is wondering if he can be made redundant whilst on sick.

The sick note from GP states 'work related stress' - my boss has had meetings with him, and are reassured that it is not our 1 days work that is causing the stress (problem with other employer). However my sick work colleague has been advised by employment lawyer (as case going through tribunal) to stay off ALL work from different employers.

My boss is pretty good, and wouldn't be taking this decision lightly. My colleague has been of full pay (albeit 1 day) for the whole period, and my boss said he can't drop to SSP as he was advised by HMRC that for 1 day's work this is not possible.....technically my colleague would be on no pay.

So, is it possible to make someone redundant who is away sick?
What would be the procedure?

Undervalued

waveneygnome wrote: »

So, is it possible to make someone redundant who is away sick?

Yes but is that the case here?

Technically it is a job that becomes redundant, not a person. Assuming this person's work still needs doing then they are not redundant and you would leave yourselves wide open to a claim if you went down that route.

If there is a general reduction in workload then the normal rules of redundancy selection must be applied. The fact that somebody is off sick is irrelevant to that process..

You may be able to dismiss them fairly (in law) on grounds of capability i.e. they are medically incapable of doing their job.

You would be wise to seek a medical opinion either from their GP or from an occupational health specialist. Either would cost the firm a fee and would of course need the employee's permission.

You would be best advised to consult a solicitor, particularly if there are other issues going on.

Vectis

How long has the person been employed?

tomtontom

I'm assuming the company has less than 20 employees? If so this should be pretty simple. The boss does a restructure (a paper exercise to cover his back), realises that the work can reasonably be absorbed by other staff, and hence the position is no longer needed.

waveneygnome

Thanks for all the replies.

Yes, less than 20 employees.

Colleague has been employed for just over 4 years.

scaredofdebt

The fact he's off sick is irrelevant to the redundancy - either the position is there or it isn't.

zzzLazyDaisy

waveneygnome wrote: »

I work for a small company, and one of my colleagues has been off sick for the past 7 months.

He is employed 1 day a week (he works at other jobs, but is off from them on sick leave also).

We are all picking up his tasks....and amazingly coping very well without him! We all like him and get on well, but our general workload has dropped, so my boss is wondering if he can be made redundant whilst on sick.

The sick note from GP states 'work related stress' - my boss has had meetings with him, and are reassured that it is not our 1 days work that is causing the stress (problem with other employer). However my sick work colleague has been advised by employment lawyer (as case going through tribunal) to stay off ALL work from different employers.

My boss is pretty good, and wouldn't be taking this decision lightly. My colleague has been of full pay (albeit 1 day) for the whole period, and my boss said he can't drop to SSP as he was advised by HMRC that for 1 day's work this is not possible.....technically my colleague would be on no pay.

So, is it possible to make someone redundant who is away sick?
What would be the procedure?

I would suggest that you take a step back and leave your employer and your colleague to get on with it.

If, as you say, the colleague is currently involved in tribunal proceedings against the employer in respect of this dispute, then it seems likely that the proceedings relate to an allegation of unlawful discrimination (your colleague is still currently employed and therefore there is no question of unfair dismissal).

You say your colleague is advised by an employment lawyer, and given that legal proceedings have been commenced, it seems likely that your boss will also be legally advised.

In any event, to answer your question -

If the employer dismisses the employee while the claim is going through, he better have a water tight case as he is open to a claim for unfair dismissal. If properly advised the employee will claim that the real reason for the dismissal is that the employee sought to rely on his statutory right (ie the right to make a complaint to an employment tribunal).

If the current claim is one for disability discrimination, then the employer will also face a further claim of discrimination for discriminating against the employee by dismissing him for a reason relating to his tribunal claim for discrimination.

I am, however, concerned that we may not have the full facts - while you seem to know a lot about your colleague's business and also that of your employer, you may well only have half the story.

With regard to the sick pay issue. The normal situation is that in the absence of a contractual sick pay scheme provided by the employer, then (subject to eligibility) the employee is entitled to SSP only. After a period of 28 weeks, the employee then claims ESA. If the employee is not eligible for SSP then they would make a claim for ESA immediately, subject to them meeting the eligibility criteria. If he is, as you say, without any form of income, and under a fit-note from the GP stating they are unfit for work, then he would be entitled to income related ESA. However, that is not the employer's problem - put simply, the employee is not eligible for SSP, so the employer does not have to pay SSP, and this certainly does not mean that the employer must continue to pay the wages of the absent employee.

So, on the facts that you have provided, it seems to me that the employer would be best advised to leave your colleague 'dead on the books'. ie to keep him on as an employee but not pay him any wages as he has no entitlement to be paid (although if the employer has been paying full sick pay for the past 7 months and continues to do so, that may now be difficult to get out of).

I suggest that the employer seeks independent legal advice on this matter and stops discussing his employee's business with you!

Takeaway_Addict

zzzLazyDaisy wrote: »

I would suggest that you take a step back and leave your employer and your colleague to get on with it.

If, as you say, the colleague is currently involved in tribunal proceedings against the employer in respect of this dispute, then it seems likely that the proceedings relate to an allegation of unlawful discrimination (your colleague is still currently employed and therefore there is no question of unfair dismissal).

You say your colleague is advised by an employment lawyer, and given that legal proceedings have been commenced, it seems likely that your boss will also be legally advised.

In any event, to answer your question -

If the employer dismisses the employee while the claim is going through, he better have a water tight case as he is open to a claim for unfair dismissal. If properly advised the employee will claim that the real reason for the dismissal is that the employee sought to rely on his statutory right (ie the right to make a complaint to an employment tribunal).

If the current claim is one for disability discrimination, then the employer will also face a further claim of discrimination for discriminating against the employee by dismissing him for a reason relating to his tribunal claim for discrimination.

I am, however, concerned that we may not have the full facts - while you seem to know a lot about your colleague's business and also that of your employer, you may well only have half the story.

With regard to the sick pay issue. The normal situation is that in the absence of a contractual sick pay scheme provided by the employer, then (subject to eligibility) the employee is entitled to SSP only. After a period of 28 weeks, the employee then claims ESA. If the employee is not eligible for SSP then they would make a claim for ESA immediately, subject to them meeting the eligibility criteria. If he is, as you say, without any form of income, and under a fit-note from the GP stating they are unfit for work, then he would be entitled to income related ESA. However, that is not the employer's problem - put simply, the employee is not eligible for SSP, so the employer does not have to pay SSP, and this certainly does not mean that the employer must continue to pay the wages of the absent employee.

So, on the facts that you have provided, it seems to me that the employer would be best advised to leave your colleague 'dead on the books'. ie to keep him on as an employee but not pay him any wages as he has no entitlement to be paid (although if the employer has been paying full sick pay for the past 7 months and continues to do so, that may now be difficult to get out of).

I suggest that the employer seeks independent legal advice on this matter and stops discussing his employee's business with you!

Can you clarify the advice please Lazy, the OP's employer isn't the one being taken to a tribunal, they are an unfortunate sufferer of the employee being told to be of sick from ALL employers.

So why advise to keep them as a dead employee that will still accrue holiday pay? Surely the employer would quite easily start proceedings to dismiss under capability reasons?

Though I agree the OP's employer needs to get legal advice before acting.

hambo04

I've seen twice people escape going through the redundancy interview due to either being off on long term sick and maternity leave.

LittleVoice

hambo04 wrote: »

I've seen twice people escape going through the redundancy interview due to either being off on long term sick and maternity leave.

There is employment protection for those on maternity leave.

zzzLazyDaisy

Takeaway_Addict wrote: »

Can you clarify the advice please Lazy, the OP's employer isn't the one being taken to a tribunal, they are an unfortunate sufferer of the employee being told to be of sick from ALL employers.

So why advise to keep them as a dead employee that will still accrue holiday pay? Surely the employer would quite easily start proceedings to dismiss under capability reasons?

Though I agree the OP's employer needs to get legal advice before acting.

Ah, my bad!

If the employer is not the one being taken to tribunal, then the employer's next step is to consider dismissal on the grounds of (in) capability.

I suggest that the employer seeks legal advice on the procedure to follow.

Either way, the employer should not be discussing the sick employee's business with other employees!