Redundancy - "...it does not apply when someone is not able to complete their role due to health reasons."

We’d like to say welcome back to everyone in the Community to our Work Support blog. This time our focus is on Redundancy.

Redundancy only applies when the employer decides that they need to reduce their workforce or change the location of the job. It does not apply when someone is not able to complete their role due to health reasons.

We find that two common situations where cancer patients may be affected by redundancy:

1. Challenging economic circumstances in an industry can lead to a cancer patient’s role disappearing under cost cutting measures such as outsourcing and restructures.
2. The absence of a staff member with a long-term illness can lead to a re-organisation of the work rather than a temporary replacement being employed.

Here are two examples:

Raj

Raj had worked as a Librarian for a charity for 10 years when he had to take sick leave because he was diagnosed with bladder cancer.

When he returned, the charity introduced new library systems to bring them up to date. The charity decided to restructure their information services as they needed less staff. Five colleagues including Raj were identified as at risk. The charity said that these five staff could apply for two vacancies that were now needed to run the service.

Raj wanted to keep his job as he loved working for the charity. He contacted us when he received a letter asking him to attend a meeting. He had several concerns about the way the redundancy was being handled:

• The employer was using attendance as one of the criteria in the selection process. He had been off sick for 4 months due to his cancer.
• He had to sit a test and attend a competitive interview. He had only just returned from sick leave and was not up to date with the new system. He was also suffering from fatigue due to his cancer treatment so again felt that he would not perform well by comparison to other candidates.

What can Raj do to overcome his disadvantage?

Raj can show that the way the employer is conducting this redundancy is causing him a substantial disadvantage- his sickness absence is being used as one criteria plus the test. The employer is under a legal obligation under the Equality Act 2010 and the Disability Discrimination Act (in Northern Ireland) to make reasonable adjustments to help Raj overcome his disability. This duty applies to the way things are done in the work place.

We suggested that Raj request the following reasonable adjustments:

1. Request training because his lengthy disability related absence has left him deskilled and unprepared for the competitive process. Alternatively, the employer can review his past appraisals instead of a competitive interview.
2. Removing or reducing disability related absence for all candidates as a criterion in the selection process.

Rose

Rose worked for a small estate agent as a Senior Valuer.

Her dismissal arose after she had been off sick with Breast cancer for 9 months. She had worked for the company for 10 years. She is aged 51.

On her return to work her boss invited her to a meeting. He said that her post had been absorbed by himself and a less senior colleague. There was no longer the post of Senior Valuer. There was a vacancy available, but this was in a junior role at less pay. Rose was invited to accept this post or be dismissed for “some other substantial reason” because there was no longer a position for a Senior Valuer. Her boss tells her as he is offering her an alternative role she would not be entitled to redundancy pay.

For Rose the redundancy payment could be 15 weeks’ pay plus her notice and any outstanding holiday pay. The employer may only want to give her notice and her holiday because he thinks it is a dismissal for “some other substantial reason”.

This is a difficult employment problem because Rose and her employer may find it hard to come to an agreement. Ultimately an Employment Tribunal may need to decide the correct approach to this situation.

If she decides to go to Tribunal, it is important for Rose to prepare her case by following the correct steps. The Tribunal will need to see that Rose has given her employer a chance to put things right, so Rose will need to put all her concerns in writing to the employer before entering the steps for Early Conciliation/Employment Tribunal. She will need to gather documents including her contract and correspondence from the employer.  The Judge will look at all the facts of the case and apply the legal tests.

Rose may also want to think about whether she has been unfairly dismissed, whether the employer has breached her contract and if she has suffered disability discrimination.

Legal advice may be crucial because of the complexity of the case. This is where the assistance of a Trade Union or the support provided by Legal Protection Insurance may be invaluable.

If you a facing a problem like Raj or Rose, please do call us for advice on the Work Support Service on 0808 808 0000 (Monday to Friday, 8am to 6pm). You can also ask our Work Support Advisors any questions you might have on work and cancer through the Ask an Expert section of the Community.