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Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
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If you are off sick from work can this affect my redundancy?

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If you are off sick from work can this affect my redundancy? I have requested for Voluntary Redundancy as they are doing away with my job role. I have just returned back from long term sick but have fell ill again due to the stress with all that been happening can they withhold my redundancy or refuse me redundancy?

Hello and thank you for your question, which I will be happy to assist you with. Please let me know how long have you worked ther for and do you just get the minimum statutory redundancy or are you entitled to more?

JACUSTOMER-4y90ymw4- :

I have worked there for 28 years and as I am aware I am entitled to minimum statutory redundancy?

Ben Jones :

Has your request for VR been officially granted?

JACUSTOMER-4y90ymw4- :

No I have submitted a letter to them saying I am not applying for any job within the new structure and they have accepted my letter, however i was to attend a formal one to one meeting yesterday and could not attend due to me being ill.

Ben Jones :

As your request for VR has not been formally accepted yet your employer does not actually have to grant it. The option of terminating your employment on grounds of capability does potentially exist although it won't necessarily be easy for the employer to do that.

Capability is one of several potentially fair reasons for dismissing an employee under the Employment Rights Act 1996. The definition of ‘capability’ includes competence (skill and aptitude), health (any mental/physical quality) and qualifications.

Whether a capability dismissal is fair will depend on the reasonableness of the employer's decision in the particular circumstances and the procedure that was followed. Basically, the employer needs to show they had reasonable grounds to believe that the employee was incapable of performing their job.

Case law has established that a dismissal on grounds of capability can be unfair if the following key elements have not been satisfied:

  • The employer needs to hold reasonable belief in the employee’s incompetence;
  • They have conducted a proper investigation into the capability issues;
  • The employee has been made aware of the problem and been given an opportunity to improve within a realistic timescale;
  • The employee has been provided with appropriate support and/or training;
  • The employee's progress is reviewed during the review period;
  • The employee is offered a right of appeal against the decision to dismiss.

Dismissal must always be viewed as a last resort by the employer. This is especially true if the reason their capability is affected is due to a condition that amounts to a disability under law.

Whether a condition is a disability will depend on a number of factors. Disability can have a broad meaning and there is no single list of conditions that amount to a disability under law. Instead, to establish whether a person is disabled for legal purposes, they need to establish whether they meet the legal definition of ‘disability’.

The Equality Act 2010 (“EA”) defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.

I will break this definition down:

  • Physical or mental impairment – this can include nearly any medical condition, including progressive conditions and mental conditions such as depression;
  • Substantial effect – the effect must be more than minor or trivial;
  • Long-term - the effect of the impairment must either have lasted or be likely to last for at least 12 months;
  • Normal day-to-day activities – these are not defined but would include anything considered ‘normal’ in a person's normal daily routine (e.g. eating, washing, driving, walking, shopping, etc.)

If it appears that the employer has taken a particularly heavy-handed approach and failed to satisfy at least some of the requirements that make a capability dismissal fair, the option exists of appealing to them first before submitting a claim for unfair dismissal (and possible disability discrimination if the condition in question amounts to a disability) in an employment tribunal.

I hope that the above answers your query. Thank you

JACUSTOMER-4y90ymw4- :

I understand that side of things but they are saying I need to wait to January to see if I am getting redundancy If i hand in a doctors sick note can they stop me qualifying for redundancy. and can I request to finish early through ill health.

Ben Jones :

Technically they can stop you from being made redundant because as mentioned they can decide who goes and who stays. However, if your condition amounts to a disability in law you would have certain protection and your employer should not treat you unfavourably as a result. So if they refuse to grant redundancy based on that it could amount to discrimination. Finally you can ask for early retirement but again there may be conditions to when this may occur

JACUSTOMER-4y90ymw4- :

Sorry for being a pain but my job is being made redundant there are 4 jobs under the new structure but 6 of us if the phase who have been consulted and given the new job structure. I have choose not to apply for any of the potions as I know my health would not allow me to travel and work in a stressful position. The last two weeks have been hell I am not coping very well the doctor wants to sign me off with stress and I am so scared they will not pay me redundancy they are a big multi-million pound company and I just want to know if i have any rights as I have worked for them for 28 years so sorry for asking all these questions.

Ben Jones :

It's not a problem. So if your job is being made redundant the employer should proceed with redundancy but what I am trying to say is that the employer can decide whether to use redundancy as a reason for dismissal or one of another 3-4 reasons that can also be potentially fair.

According to the Employment Rights Act 1996 there are five separate reasons that an employer could use to show that a dismissal was fair: conduct, capability, redundancy, illegality or some other substantial reason (SOSR). So the potential does exist for the employer to try and dismiss you on grounds of capability, because you are no longer capable of performing your job. However, if it is obvious they did that to try and avoid paying redundancy then it could amount to unfair dismissal and also potential disability discrimination, both of which can be challenged by you

JACUSTOMER-4y90ymw4- :

Thank you, I thought this would be the case as they have been hit with a lot requesting to take redundancy instead of going for any of the jobs and because I have been off ill and then went back to work, to be hit with the news of my job role was going I feel i am being treated different because they keep mentioning it and I am taking panic attacks I have never been off sick until May this year when I was diagnosed with Meneriers Diease. I feel like just handing in my notice but will lose everything

Ben Jones :

No do not just quit and see where they take this. You may still end up with redundancy but if that is not the case at least you can challenge their decision which would be easier to do than if you had resigned

JACUSTOMER-4y90ymw4- :

Okay Thank you.

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