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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45306
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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An employee has been on long-term sickness absence since

Customer Question

Hi
An employee has been on long-term sickness absence since August 2015. The duties of their role have been absorbed into the working patterns of the existing management team and no individual has been put in place to cover the position. This has continued since August 2015 and now it appears that no job description exists, so it is impossible to define the role as it was.
Is it reasonable to believe that the role itself has become redundant?
Submitted: 9 months ago.
Category: Employment Law
Expert:  Ben Jones replied 9 months ago.
How long had he worked there?
Customer: replied 9 months ago.
for 7 years, originally as an administrator, but the role developed over time to include financial administration and some management responsibilities in terms of controlling payroll and budgets for a restaurant location. It is the developed responsibilities that do not have written JD
Customer: replied 9 months ago.
The employee has been stuck at home following failed surgery on a blown disc in the lower spine. He has maintained that he is fit to work from home, and his GP has supported this. The employer has refused to allow this. At a recent 'welfare' meeting the employee asked what role he would be returning to when able to get to work, and was told to write a job description for his role as nobody at the company knows what he did.
Expert:  Ben Jones replied 9 months ago.
Hello, sorry my laptop experienced some issues and I have only just managed to fix it.This could indeed amount to potential redundancy. 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).The third reason above creates the most challenges. Examples of when there is a reduced requirement to do work of a particular kind are:
• The same amount of work remains but fewer employees are needed to do it. This includes consolidating some of its jobs (e.g. spreading out certain jobs amongst existing employees).
• There is less work of a particular kind and fewer employees are needed to do it (both the work and the headcount shrink)
• There is less work of a particular kind, but the same number of employees are required overall.In your case the first option may be the most appropriate. As long as the employer can show that their situation fell within one of the accepted reasons for declaring a redundancy, the test will be satisfied and the focus then shifts on the remainder of the redundancy procedure and its fairness.This is your basic legal position. I have more detailed advice for you in terms of how to conduct a fair redundancy procedure, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45306
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 9 months ago.
Thank you Ben. I left a rating as requested.
My question is from the employee's point of view (he is my partner). He was only incapacitated for a week in August 2o15 and since that time has maintained a desire to work from home - something he has done successfully on 2 previous occasions in the past, by having invoicing, payroll details etc sent home, or brought home. He was advised to stay home and not to work so that he could recover fully, and remained on full pay. He understood this to be a suspension from work on medical grounds (although no written document to that effect was ever issued), but continued to request that he be allowed to work from home, which was denied. (reasons included time to recover and data protection requirements), and has never been invited to a medical review meeting.
This person has been trying to have work sent home to him so that he can maintain some kind of 'normal' during a very difficult time, both physically and mentally. He has been denied this opportunity.
It has been so long now, and there has been a complete change of management at the restaurant where he is based. His site manager and operations manager have both moved on and the area manager looking after his case has also gone, but he does not know why.
While not looking for specific reasons to make a claim, and bearing in mind that he remains on full pay, despite no sickness policy in place at the company, he wants to consider an exit, but needs to understand his position.
Has his position effectively been made redundant (without consultation)?
Expert:  Ben Jones replied 9 months ago.
Thank you. He has not been made redundant without consultation because he is still employed by them and for that to happen he must have been dismissed for redundancy first. So whilst his job may have disappeared, he has not actually been made redundant yet so the requirement for consultation would not have arisen at this stage. So he could advise them that he is ready to return to work and if his job is no longer available then it would trigger a redundancy situation and that is when they would have to start consultation and look at offering him any suitable alternative employment. If no such alternatives are available then he would be able to request being made redundant and getting his redundancy pay. So he can approach any discussions in that way – state he is willing to return, see if any suitable options exit for him to return to and if there are none – pursue redundancy.
Customer: replied 9 months ago.
ok, Thanks for that. If there is a change in his level of responsibilities, removing management tasks such as payroll, reducing the role to that of entry level administrator, what are his options?
Expert:  Ben Jones replied 9 months ago.
You are most likely looking at constructive dismissal, where he is forced to resign because of breach of contract or unreasonable behaviour by the employer

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