The issues surrounding sick leave and redundancy are complex. Perhaps during more economically prosperous times the advice would be more focused on ensuring that every last drop of your entitlement was gleaned, but we are in difficult times where, sadly, redundancy is rife. While we would certainly encourage you to seek professional advice to ensure you are/have been treated fairly, it is important to remember that times are tough and we all have to do what we can to keep hold of our jobs.
One of the first things to point out is that being made redundant while on sick leave is totally legal. Yes, there needs to be certain criterion that is adhered to, but in the main it is perfectly acceptable. So before you start yelling ‘unfair dismissal’, you need to know that it is quite possible to be made redundant when you are on sick leave – whatever the illness. Of course, that sounds pretty awful, especially if you are dealing with a really bad illness, but these are tough economic times and tough decisions need to be made to keep businesses afloat. Poor attendance and sickness/sick leave is often used as a deciding factor in making redundancies so this is an accepted practice.
So how do you know if your redundancy during your sick leave is legal? Although this article cannot take the place of personalised advice by an employment law professional that can read through your Terms & Conditions of Employment with a fine toothed comb, it is useful as a general guideline.
Were You Informed of Potential Redundancy?
Your employer will have needed to inform you that redundancies were likely to take place at some point in the future. Although there is no clear guideline as to how soon before the actual redundancies are made, this information needs to be given, at least a week is the minimum, with details via email also considered acceptable. If you are on sick leave you may be asked to attend the office to be informed of this, so if you are unable to attend due to your illness this still counts as you being told.
Can Your Employer Show that the Decision was Taken Fairly?
If you have kept your employer informed of your illness and continuing sick leave requirements, they must be able to show that the decision to make you redundant was taken fairly. While this can include the fact that you have taken a lot of sick leave, they must be able to prove that anyone else with a similar record (with performance factors taken into consideration) was also considered. They may also need to prove that they looked into other areas of the company where you could have worked before making you redundant.
Redundancy Pay Entitlement
Your sick leave status can have a big impact on your redundancy payment entitlements, but not as much as the length of time you have worked for the company. Regardless of whether or not you are on sick leave, you are not entitled to any redundancy pay if you have less than 12 months service. There is a slight increase up to 24 months service, although the more generous payments come after two years continuous employment with the same company. Your notice period still counts when you are on sick leave and you also accrue holiday pay when you are on sick leave in the same manner as when you are not on sick leave, so be sure to get the holiday pay, notice pay and redundancy pay to which you are entitled.