Sickness as redundancy criteria
Discussion
Fair, or not?
It is explicitly mentioned as one of the point-scoring criteria in a redundancy letter, alongside attendance, disciplinary record, etc.
I would have thought it unfair that sickness used as a decider, even if it's assigned less priority than other terms. You can't choose when you are sick can you - unless the employer believes you have lied about being sick, which is another can of worms?
It is explicitly mentioned as one of the point-scoring criteria in a redundancy letter, alongside attendance, disciplinary record, etc.
I would have thought it unfair that sickness used as a decider, even if it's assigned less priority than other terms. You can't choose when you are sick can you - unless the employer believes you have lied about being sick, which is another can of worms?
Eric, the explanation seems to be, employees are placed into "pools" matching the jobs that will still be available, then their individual criteria (sickness, qualifications, length of service etc) decide who stays and who goes.
No doubt it has already been decided.. but a fretful 30 days wait is on.
No doubt it has already been decided.. but a fretful 30 days wait is on.
They cannot use that criteria - end of story.
Either the work is still required to be done or it isn't.
If the person has been ill, that does not on its own mean that the work they did has ceased to be needed to be done.
Redundancy, in law, has absolutely NOTHING to do with the personal atributes of the individual.
Either the work is still required to be done or it isn't.
If the person has been ill, that does not on its own mean that the work they did has ceased to be needed to be done.
Redundancy, in law, has absolutely NOTHING to do with the personal atributes of the individual.
I'm sure i've heard of sickness being used, but it was more in the lots of odd days rather than extended periods covered by sicknotes, after all if you are reducing the number of employees and potentially upping their workload then stress or not turning up on sunny Fridays or Mondays may be relevant.
Sickness absence can be used - albeit very carefully. The following is a direct lift from Croners Employement Law. It relates to absence due to a disability (such as being off sick with depression), but demonstrates that you can use sickness absence as a criteria. It must never be used as the sole criteria, and care and consideration should be given when it is used.
"For example, if absence is used as a selection criterion, the employer should consider whether it would be reasonable to discount any absences caused by or related to the employee’s disability. Additionally, the effect of the employee’s absences on other factors such as experience, training and performance should be discounted, where reasonable. If a case was taken to an employment tribunal, the tribunal would examine the manner in which absence records were used to determine redundancy selection, the period over which attendance was measured (which should not be too short), and how different types of absences had been taken into account. The tribunal would judge for itself in each case whether or not the employer had fulfilled its duty to make reasonable adjustments for the employee in question.
In Royal Liverpool Children’s NHS Trust v Dunsby 2006 IRLR 351, however, the EAT decided that there is no absolute rule that disability-related absences must be discounted when calculating an employee’s total periods of absences. They held that the employer had not acted unlawfully by taking the employee’s disability-related absences into account when operating their absence procedure, which led to her dismissal. This was despite Mrs Dunsby’s evidence that if her disability-related absences had not been taken into account in the operation of the absence procedure, she would not have been dismissed.
It would be unusual for attendance records to be the sole criterion for selection for redundancy (and this practice is not recommended), but employers may wish to include them as one of a group of criteria, provided care is taken that disabled employees are not adversely affected in the selection process."
"For example, if absence is used as a selection criterion, the employer should consider whether it would be reasonable to discount any absences caused by or related to the employee’s disability. Additionally, the effect of the employee’s absences on other factors such as experience, training and performance should be discounted, where reasonable. If a case was taken to an employment tribunal, the tribunal would examine the manner in which absence records were used to determine redundancy selection, the period over which attendance was measured (which should not be too short), and how different types of absences had been taken into account. The tribunal would judge for itself in each case whether or not the employer had fulfilled its duty to make reasonable adjustments for the employee in question.
In Royal Liverpool Children’s NHS Trust v Dunsby 2006 IRLR 351, however, the EAT decided that there is no absolute rule that disability-related absences must be discounted when calculating an employee’s total periods of absences. They held that the employer had not acted unlawfully by taking the employee’s disability-related absences into account when operating their absence procedure, which led to her dismissal. This was despite Mrs Dunsby’s evidence that if her disability-related absences had not been taken into account in the operation of the absence procedure, she would not have been dismissed.
It would be unusual for attendance records to be the sole criterion for selection for redundancy (and this practice is not recommended), but employers may wish to include them as one of a group of criteria, provided care is taken that disabled employees are not adversely affected in the selection process."
Eric Mc said:
They cannot use that criteria - end of story.
Either the work is still required to be done or it isn't.
If the person has been ill, that does not on its own mean that the work they did has ceased to be needed to be done.
Redundancy, in law, has absolutely NOTHING to do with the personal atributes of the individual.
It does when many people do the same job.Either the work is still required to be done or it isn't.
If the person has been ill, that does not on its own mean that the work they did has ceased to be needed to be done.
Redundancy, in law, has absolutely NOTHING to do with the personal atributes of the individual.
If a factory has 25 people who drill holes and they want to make ten positions redundant, they will have to use some kind of personal attribute sorting.
The default assumption any employer should take is that sickness or disability CANNOT be used to discriminate in chosing which action is to be taken agaianst an employee or a group of employees.
As has been stated, if they ARE going to use this criteria, they must demonstrate that absolutely every other course of action capable of being used was examined and rejected.
I don't know how old that case was but there has been a whole raft of anti-discrimination law brought in over the past few years and if I was an employer I would tread very carefully in this area.
Edited as I've spotted it was in 2006. Things may have changed since then.
As has been stated, if they ARE going to use this criteria, they must demonstrate that absolutely every other course of action capable of being used was examined and rejected.
I don't know how old that case was but there has been a whole raft of anti-discrimination law brought in over the past few years and if I was an employer I would tread very carefully in this area.
Edited as I've spotted it was in 2006. Things may have changed since then.
Edited by Eric Mc on Monday 29th June 12:42
Interesting. So let's say I'm genetically disposed to migraines (I am) which can occasionally force me to have a day or afternoon off every now and then.
How can the company use that as a fair comparison against another employee who may be lucky enough not to have the same dispostion? (or even have a more or less severe issue of their own.. the combinations get mindboggling)
How can the company use that as a fair comparison against another employee who may be lucky enough not to have the same dispostion? (or even have a more or less severe issue of their own.. the combinations get mindboggling)
I think we need to be a bit careful here. In general discrimination on the grounds of disability is clearly wrong, however that does not mean that you can't dismiss on the grounds of absence through sickness, although you have to be careful.
But this question isn't about that, it's about using sickness as a scoring criterion in determining who in a group of people should be made redundant. And there you can use absence as one of the reasons.
So if you have two people doing the same job and there was one post being made redundant if all other things were equal but one of them had more absence then you could choose that person to be made redundant.
But this question isn't about that, it's about using sickness as a scoring criterion in determining who in a group of people should be made redundant. And there you can use absence as one of the reasons.
So if you have two people doing the same job and there was one post being made redundant if all other things were equal but one of them had more absence then you could choose that person to be made redundant.
john_p said:
Interesting. So let's say I'm genetically disposed to migraines (I am) which can occasionally force me to have a day or afternoon off every now and then.
How can the company use that as a fair comparison against another employee who may be lucky enough not to have the same dispostion? (or even have a more or less severe issue of their own.. the combinations get mindboggling)
Because on a like-for-like basis the other employee is "better" than you using this particular criterion (subject to all the previous, and correct, caveats re potential disability calims).How can the company use that as a fair comparison against another employee who may be lucky enough not to have the same dispostion? (or even have a more or less severe issue of their own.. the combinations get mindboggling)
Attendance is frequently used as one of the selection criteria to select from a pool of at risk employees. It's a foolish employer who used this as the sole criterion, though.
john_p said:
Interesting. So let's say I'm genetically disposed to migraines (I am) which can occasionally force me to have a day or afternoon off every now and then.
How can the company use that as a fair comparison against another employee who may be lucky enough not to have the same dispostion? (or even have a more or less severe issue of their own.. the combinations get mindboggling)
The company only has to take specific care when the illness that caused your absence is a defined disability, and even then, they can still use it as a reason if it is the only factor left after all other avenues have been explored.How can the company use that as a fair comparison against another employee who may be lucky enough not to have the same dispostion? (or even have a more or less severe issue of their own.. the combinations get mindboggling)
The company has two equally qualified people doing the same job, they both have a clean disciplinary record, they have both achieved similar scores on their appraisals. One has been off sick on 3 seperate occaisions for a total of 5 days over the period of their employment with a migraine. The other has not had a day off sick during their employment.
The person with the absence is going to be selected for redundancy as it is the only differentiating item.
As the person suffering from the migraine, you may think this sucks, but sometimes it comes down to the smallest of things and a decision has to be made based on hard evidence.
Edited by Firefoot on Monday 29th June 13:31
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