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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48741
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Good morning, I am employed as a HR Advisor with main responsibility

Resolved Question:

Good morning, I am employed as a HR Advisor with main responsibility for UK payroll and generalist HR work such as interviewing, holding assessment centres, assisting with inductions, writing and reviewing company policies and have been employed part time at my current company for 12.5 years since October 1st 2001. I was diagnosed with a debilitating and potentially life shortening condition (Cushings disease) end November 2013 and signed off fit to work from home on reduced hours of 3 hrs/day for my usual 3 days per week (Mon to Wed) until I had neurosurgery to remove a pituitary gland tumour on 24 Feb 2014. After this I have been signed off not fit to work at all during my recovery and my current sick note ends 24 June 2014 and my GP will review the situation with me near that time. My recovery is individual to me, so difficult to predict, as I have been producing 6 to 7 times as much cortisol as a normal adult possibly for years and now after surgery my body is in 'shock' as the pituitary is not producing any and needs to recalibrate itself. I am now technically steroid dependant and have to carry a blue card, my daily replacement steroid medication and an emergency steroid injection with me at all times.

My line manager has kept in touch with me to hear how I am and how my recovery is going and we have spoken most weeks. On 6th May during a usual catch up she asked to speak to me on a separate issue that would impact my role. On 7th May she told me that the UK payroll I was responsible for was being subsumed into a Compensation and Benefits Analyst role within Finance, this was a full time role reporting to the newly created International Compensation and Benefits Manager who together would oversee and be accountable for both UK and international payrolls and all tax compliance and monitoring. I was emailed the analyst role job profile to review and we agreed to speak to establish my interest before they rolled this out to others. On 14th May we spoke and I confirmed I would not be applying as not a suitable alternative, was not looking for a full time role and also did not see my career going in direction of a Finance specialist when I preferred to retain generalist experience working in HR. I was told that my role was at risk and if no alternative employment could be found then my role was redundant. My Line Manager has gone away to see about this an estimated to come back to me in about a week/10 days. She prefers to meet face to face next time, so I suggested on neutral ground near my home as I cannot easily travel far at the moment. Please can I ask advice as to what rights I have whilst signed off sick and can they make me redundant whilst signed off. Although I understand the business drivers for the move to a central Finance accountability for all payrolls and related issues I feel like I am being engineered out of a role at a time when I am vulnerable and not fully well to be faced with making such decisions. They made the new role full time and even if I had been interested I was not technically qualified with the international tax, accounting or audit experience they quoted as essential in the job profile- they pitched the role 2 grades higher than my current one. I have the benefit of long term income protection which I would be denied the opportunity to claim should my contract end due to redundancy - I feel I am not being treated fairly and no-one else in HR is affected/role at risk - my Line Manager said the general HR work I did has been covered by herself as HR Manager and a HR Business Partner and one other HR Advisor.
This feels more than redundancy and I would want to be compensated for my loss of office in these circumstances - please could you advise on what grounds I could do this and what the situation would be deemed as legally?
I would be grateful for your advice, just to add that I am finding the situation stressful the more I consider it and it is currently hampering my well being and rate of recovery.
Thank you very much, Cara Wright
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How long have you worked there?

Customer:

Hello Ben

Customer:

Thank you, XXXXX XXXXX worked for the company for over 12.5 years always part time since October 1st 2001

Ben Jones :

OK, thank you, XXXXX XXXXX this with me - I will look into this for you, get my response ready and get back to you on here. No need to wait around and you will get an email when I have responded, thank you

Customer:

Thank you very much Ben, just to add that my Line Manager said there is a recruitment freeze so I am doubtful of any alternative employment opportunities being available and also that I feel it would suit her not to have me or the payroll function reporting into her going forward as she has no experience of this area particularly as it grows internationally. Regards Cara

Ben Jones :

Thanks for your patience. It is certainly possible for you to be made redundant whilst you are signed off sick. The fact you are not at work and formally signed off does not mean you cannot be affected by a potential redundancy and if that is what is genuinely happening and the employer has a need to go down the redundancy route, they may still make you redundant regardless of your current position. The key is that they must still treat you fairly and ensure that you have been selected fairly and that you have been taken through a fair redundancy procedure. This would involve a proper period of consultation, looking for suitable alternative employment and so on. You may not be at work to attend any consultation meetings but this can be done remotely, such as through letters, emails or over the phone.


 


As to whether this is a genuine redundancy it would very much depend on whether the employer is able to meet the legal criteria for this. The term 'redundancy' is used to describe a situation in which an employer decides to reduce the number of its employees. There are various reasons as to why redundancies may be required, such as economic pressure, changes in the nature of products/services offered, internal reorganisation, workplace relocation, etc. The reason for the proposed redundancies will rarely be challenged and the employer will simply have to justify that the actual reason satisfied the statutory definition of a redundancy, which can be found in The Employment Rights Act 1996:



1. Business closure – where the whole of the employer’s business is closed


2. Workplace closure – closure or relocation of one or more sites


3. Reduced requirement for employees to carry out work of a particular kind (this is where many employees get confused as they believe a job has to actually disappear for them to be made redundant).


 


Therefore, if your job, as it is now, ceases to exist and it is either completely or partially removed, or its duties are absorbed into other existing or newly created jobs, it could amount to redundancy and unless there is other suitable employment available then you may be made redundant.


 


Instead of the redundancy route it may be worth approaching the employer and asking them to consider early retirement, or if your benefits would be affected, perhaps a dismissal on grounds of capability. In terms of making a claim, even if you believe that this is more than a redundancy, you won’t easily be able to do so unless you can show there were other motives behind their decision, such as your medical condition, but in the absence of any direct evidence that could be difficult.

Customer:

Thank you for your reply, I understand what you have outlined re redundancy whilst I am signed off sick. Please can you expand on/define what is dismissal on grounds of capability and also where this would leave me in terms of getting a suitable positive reference for any future employer? Thank you, XXXXX XXXXX

Ben Jones :

A capability dismissal is when the employer dismisses you because you are no longer capable of performing your job. You cannot force them to go down that route but you can certainly ask them to consider it. In terms of a reference, no type of termination guarantees you any sort of reference - the employer is not obliged to provide one, but if they do they must ensure it is accurate and reflects the truth. So whether you are made redundant, dismissed for capability or any other reason, the employer does not have to provide a reference but if they choose to do so then they must include factually correct information, such as the actual reasons for dismissal, although they do not have to. You may certainly try and negotiate a specific reference with them before leaving if they are willing to agree to it

Customer:

Thank you I understand this definition but I am unsure it applies to me because I am temporarily unavailable/unable to do my job because of illness, not really that I am not capable. When well I would be able and capable, it is just a case of the timing for me and the uncertainty at the moment of stating when I could return to work that even I, my GP or specialist endocrine doctors could realistically predict. Both GP and endocrine doctor have offered to write if I need any support in writing as to my current situation. Please could you give examples of why someone would no longer be capable of performing their job so I can full understand if it really applies to me - in my mind it just seems to be outlining lack of experience and expertise - I would appreciate your view, thank you

Ben Jones :

Capability is not just about performance for example, it also includes health, so if you are not capable of doing the job, be it because of your health or other reasons, then capability can apply as a reason for dismissal. So as far as your position is right now - you are not actually capable of performing your job, which is confirmed by you being signed off sick.

Customer:

Thank you that is clear, so would you say I am in a position (as part of the consultation process that has started and in negotiating what is to happen next) to ask my line manager the direct question ''are you dismissing me on grounds of capability ?'' - or how might you best phrase it please? Thank you

Ben Jones :

Well they are not dismissing you on grounds of capability as far as I can see and they are obviously using redundancy as a reason but I simply suggested that you ask them to consider whether they could instead be using the capability route to allow you to claim the income protection cover

Customer:

Thank you sorry I see now what you are suggesting and why, that is really helpful, thank you very much for your advice today

Ben Jones :

You are most welcome, hope this works out for you

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