19/06/2023

Whether an employee can be made redundant while on sick leave is a question frequently asked by both employers and employees. The simple answer is yes, it is possible to be made redundant while on sick leave. However, making someone redundant because of their ill health could give rise to claims of unfair dismissal.

It is important that employers can show that any redundancy decision was made based on the needs of the business. This could include a reduction in work or a necessary reorganisation that means that the employee’s role is no longer required.

If it is necessary to make an employee redundant while they are on sick leave, you must carry out a consultation with them and follow the correct procedures.

How can I ensure making my employee redundant whilst they are on sick leave is fair?

We’ve listed some top tips on handling a redundancy situation with a member of staff on sick leave to ensure they fully understand the situation and they don’t feel as though they have been dismissed unfairly:

• Make sure the affected employee is aware that they are in a redundancy situation. We would suggest a phone call, followed by a letter to confirm what they have been told. If other job roles are at risk, make sure you inform those staff at the same time to ensure everyone affected is treated in the same way.
• If the employee whose job is at risk is too ill to attend consultation meetings, consider making adjustments such as offering to visit them at home or conducting meetings via a video or phone call.
• If your employee is off work with mental health issues or stress, it is important to be particularly sensitive, while still ensuring you provide all the information they require in a timely manner and give them the opportunity to participate and comment on the proposals, perhaps in writing or through a representative. If they are completely unable to engage with the process, you might need to consider whether it is possible to wait for the employee’s health to improve. If the redundancy process cannot be delayed, you should make sure you can demonstrate why the needs of the business mean that the redundancy must go ahead. The key is always to be fair and reasonable in your handling of the situation.
• If your reason for considering termination is because of long-term sickness absence, it is vital that you follow a fair process for ill health dismissal, following your organisation’s absence policy, consulting the employee, considering reasonable adjustments (if relevant) and taking medical advice. This can be a tricky process, but it is possible on the basis of ‘capability’ – this could mean that the employee doesn’t have the skill, aptitude, health or physical or mental qualities to perform the role.

These tips apply to every situation of making an employee redundant whilst they are on sick leave and every measure must be taken to ensure that the employee is treated fairly, considering their situation of ill-health.

Long-term sickness and redundancy

The ongoing case of a mother who is suing her son’s former employer after her son took his own life is a sobering reminder of the complexities of these types of cases. 

Kristof Fabry had been absent from his job with a London firm of solicitors due to mental health issues in April and May of 2019. When he returned to work in May of that year, he was given one month’s notice of redundancy. Five days later, Mr Fabry took his own life.

His mother claims that his employer dismissed him because of his anxiety and depression and that this amounted to disability discrimination. However, the law firm cites lack of work as the reason for the redundancy situation, stating that those who made the decision were unaware that Mr Fabry had a disability. An employment tribunal is pending.

Need advice on making an employee redundant whilst they are on sick leave?

For advice on this or any other employment issue, please email enquiry@beswicks.com or phone our Stoke-on-Trent solicitors on 01782 205000 or our Altrincham solicitors on 0161 929 8494. If you are an employer, you can benefit from unlimited employment law and HR advice via phone or email through our low-cost Beswicks HR service. Email laura.franklin@beswicks.com to find out more. Alternatively, you can fill out our online contact form or read more about employment law.