Employment Lawyers Can Answer Your Employment Law Questions
Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How long have you worked there?
Thank you, XXXXX XXXXX worked for the company for over 12.5 years always part time since October 1st 2001
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
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
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.
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
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
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
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.
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
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
Thank you sorry I see now what you are suggesting and why, that is really helpful, thank you very much for your advice today
You are most welcome, hope this works out for you