Redundancy series: How to treat those on leave during redundancy process

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In this insight we summarise how employers should treat and score employees who are not in the business during a redundancy process, for example due to maternity or sick leave.

If any individual is in a standalone role they can be consulted with and made redundant. However, due to the employee’s circumstances (being on leave at the time, and potentially in a protected situation) the employer must have a clear and rational proposal which is not connected to the absence. There is still a risk that the employee may try to connect the reason for their absence with the proposal to make their role redundant. 

In some cases where a redundancy situation has arisen, but the employee is off long term (for whatever reason) an employer may be able to put the redundancy process on hold. The employee would have to be told about it and agree to delaying the consultation. This may not always be possible if the employer wishes to progress with a restructure which involves the absent employee’s role. 

If an employer is reducing roles and therefore pooling (i.e. reducing from five to three) the employer can again consult and make someone on leave (for whatever reason) redundant. However, it is likely that the process will have to be adapted given that they are not in the office (e.g. holding meetings at the employee’s home or at another location and potentially allow someone else to accompany the employee – there is no legal right to be accompanied to redundancy consultation meetings, but employers often allow companions as good practice).

Any scoring should ideally be based on the same relevant period when all employees to be scored were working to ensure that the surrounding circumstances are the same. For example, when employers were making redundancies during the pandemic, they looked at the 12-month period immediately prior to lockdown to score employees at risk to ensure that furlough, downturns in trade due to the uncertainty, etc. didn’t affect some people more than others.

An often-forgotten protection for those on maternity, adoption or shared parental leave is the rule under regulation 10 of the Maternity and Parental Leave etc. Regulations 1999, regulation 23 of the Paternity and Adoption Leave Regulations 2002, and regulation 39 of the Shared Parental Leave Regulations 2014: when someone is on maternity, adoption or shared parental leave they are entitled to be offered any suitable alternative vacancy ahead of anyone else at risk, or otherwise. Note that the right is to be offered the role – they should not be interviewed for it or scored against others not in their position. This applies even if they may not be the best person for the job, if the vacancy fulfils the requirement of being a suitable alternative the right to be given the role is automatic. This protection is due to be extended from the point the employee notifies the employer that they are pregnant to six months after they return (similar but as yet undetailed extensions will also apply to those taking adoption or shared parental leave).

Note also that the right to be offered a suitable alternative vacancy is triggered at the point a relevant employee is selected as redundant and not prior to any scoring. For instance, where roles are being reduced from five to three and one of the five employees is on maternity leave, all five would be scored. If the employee on maternity leave is in the top three, they aren’t entitled to be offered a suitable alternative vacancy. However, if they are scored in the bottom two (and the scores are verified so that she is still at risk) they then have the right to be offered any suitable alternative role ahead of their colleague who also scored in the bottom two.

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