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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50196
Experience:  Qualified Employment Solicitor
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My company have decided to make a certain number of my job

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My company have decided to make a certain number of my job title redundant .
The process for selection is based on an assessment over the last two years of employment only. Seniority is not considered but there are a number of other categories that make up a total score of 30 points. Including...E-Learning, safety awareness/ reporting, flexibility, job skills( qualifications)and performance review. Each section is worth various values .
I have been told that I am ' at risk ' due to my score , which is at present unknown to me.
Out of the two year assessment period I was off on long term sick leave for serious illness for 14 months. In my absence the works manager changed hands and was unknown to me and he was responsible for part of my assessment regarding performance score.
I was obviously also not available for that period to be assessed on flexibility and safety scoring etc.
My question is , how can I be fairly assessed / scored overall in a two year period when I was absent for over fifty percent of that time?
Also the biggest part of scoring is skills with a max value of 15 points.( either 5, 10 or 15 points).
I understand that I will have received 10 points, and that to achieve the full fifteen I would have had to attend a course that was run in my sick leave to achieve this, which obviously I wasn't able to do.
Is this discriminatory ?
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. Do you know if the employer has made any allowances for the fact you were on sick leave?
Customer: replied 2 years ago.
I don't think any allowances have been made at all and this Offshore Manager whom I never met was responsible for part of my overall score and I have been assessed on the same merits as everybody else who was actually working for those two years.
Whilst in general the criteria which the employer has used could be held fair and reasonable, that would not be the case if no allowances have been made for the fact you have been on sick leave for the majority of the assessment period. Most importantly, if your condition amounts to a disability your employer’s actions could amount to disability discrimination alongside unfair dismissal.
The first thing is to try and establish whether your condition is a disability. In the legal sense of the word, disability can have a broad meaning and there is no single list of medical conditions that qualify. Instead, to establish whether a person is disabled, they need to show that they meet the legal definition of a ‘disability’.
The Equality Act 2010 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;
• 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 could include anything considered ‘normal’ in a person's normal daily routine (e.g. walking, driving, speaking, eating, washing, etc.)
If a person satisfies the above criteria, they will be classified as being disabled and will have automatic protection against discrimination, which means that they must not be treated unfavourably because of their disability. In your case this would mean adjusting your scores in a way that the time spent on sick leave is not included in the redundancy scoring. An alternative may be to go back an equivalent period before you went on sick leave and consider that, instead of the time you were off sick.
So in the first instance you need to challenge this in any consultation meetings you still have upcoming. If none are scheduled, you have the right to appeal the redundancy once it has been confirmed. You can also raise a grievance at any time with the employer whilst you are still employed by them. Finally, if the redundancy stands and your employment is terminated you could make a claim for unfair dismissal and/or disability discrimination in the employment tribunal, within 3 months of your employment terminating.
I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Customer: replied 2 years ago.
Thanks for your advice as it's been very helpfull indeed. However it does raise other questions that I need to consider.
The reason for my absence was due to being diagnosed with bowel cancer. I had chemo and radiotherapy which was effective and I'm very fortunate that the tumour has completely gone.
I was therefor able to get my dive medical back( I'm a North Sea saturation diver) continuing monitoring though, does mean that I am not always available for work . Though I did manage to complete my contract days fully in just six months!
So unsure of any claim that I have a disability as such, unless the year sick leave I had due to the above counts towards any disability? As that year due to the intensive treatment I did have very adverse side affects.
I still have to have regular health checks including CT, MRI.PET scans , blood tests and examinations as I'm on a Royal Marsden program of watch and wait.
Indeed says "when a person is diagnosed with cancer they are automatically classified as disabled for the purposes of the equality act".. Further "this protection of discrimination continues even when there is no longer any evidence of the cancer... So even if the cancer has been successfully treated, employees will continue to be protected against discrimination"I have a suspicion that the company may see my health issues as a bit of a liability and whilst they could never openly say this, it's quite easy to mark somebody down on points in the scoring process to get rid of them.
My yearly assessments have all been excellent with straight A s and have no disciplinary issues at all so can only assume the above.
Hello, well you are indeed 'lucky' so to speak because cancer automatically amounts to a disability and you do not need to meet any of the other requirements to try and show that it qualifies. So as soon as you have been diagnosed with it, you are automatically deemed disabled. When it comes to a redundancy scoring exercise the employer needs to act in a fair and objective manner, and you also have a right to see the scores and challenge them. So you can ask to see how you have been scored and where you have scored low and see if this was due to your absence and if any allowance were made to counter that. If that was not the case then you may indeed challenge this as discrimination and unfair dismissal.
If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
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