Posted by Malcolm Gregory, Partner
Can sickness absence be used as a redundancy selection criterion?
While care must be taken when using sickness as a redundancy selection criterion, press reports suggesting that this is unlawful are overstated.
EasyJet was criticised by the pilots’ union BALPA for using sickness absence records as one of its redundancy selection criteria. However, the point was raised during a negotiation about the selection criteria and so it should not be regarded as a correct statement of the law.
It is true that it is important to be careful when taking sickness absence into account during the redundancy selection process. If there are employees who have had more sickness than others as the result of a disability, it might be a reasonable adjustment to disregard the days of absence which arise from that disability before finalising the scoring for those employees.
This is a particularly sensitive issue in the context of the coronavirus pandemic, where many employees have not been attending work for long periods on medical advice, either because they have been self-isolating because of possible exposure to the virus or shielding due to vulnerability. Indeed, EasyJet says that its proposal excludes absence since lockdown began.
It is also true that sickness absence should not be given disproportionate weight in selecting employees for redundancy, but rather should be used as one of a broad set of criteria, such as competence, conduct and length of service, which are measured as objectively as possible. EasyJet says that it is also taking conduct, qualifications and general attendance into account.
However, regardless of reports in the media, there is no evidence that the law has changed in relation to using sickness absence as one of the redundancy selection criteria. It remains the case that, subject to the caveats above, it can continue to be used in the same way as before.
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