Accident at work and redundancy

An employee was the victim of a major accident at work which caused life changing injuries and is currently off long term sick.

The employee is aware that all staff will be potentially redundant at their site, due to closure, unless redeployed in wider business. The business are proposing to:

1 postpone redundancy consultation with the individual beyond the date of the site closure, to allow a period of recovery time, obtain medical evidence etc. If the colleague makes a recovery and is fit for work/redeployment, then the Company propose to start redundancy consultation and if redeployment is not successful, dismiss on redundancy grounds or

2 If the colleague does not make a recovery, then follow capability process and dismiss on ill health grounds.

In the meantime, the intention is to continue paying full company sick pay which exceeds what we would normally pay contractually.

The cost of his continuing employment, beyond the site closure, will be bourne by another site. 

We have met with the employee from a welfare perspective and they are not willing to consent to arrange an occupational health assessment. I have asked management the question, 'what does the colleague want' but managers aren't sure. In my view it is quite possible that the colleague may want redundancy pay and feel there is a benefit in receiving this together with potential compensation that may come from his current ongoing PI claim.

I know it can be tricky in this situation to determine the correct reason for dismissal but my view is that end of March is to early to decide to what extent the colleague may recover and whether we could support with reasonable adjustments in the future as they are still undergoing treatment and having physiotherapy. Therefore, given the redundancy situation would occur before any decision are made about his fitness for work, then the reason for dismissal would relate to the redundancy situation not the ill health and we should consult and continue process rather than delay further. 

My view is that if if the redundancy process is applied to all his colleagues, then to treat him differently on the grounds of his medical condition would be discriminatory on disabled grounds (although currently I have no medical evidence that his condition will last for more than 12 months but I would imagine it is likely to be the case. I think the best advice is to continue with redundancy consultation and dismiss but then.

I am not sure if this would impact on any potential disability benefits (if they are relevant)

Any thoughts, views, advice, recommendations

  • His PI claim will almost certainly not be hugely affected by what you do ( save for loss of earnings).

    The question is if delaying consultation is a reasonable adjustment. Have you given him the choice?

    I don’t believe there is a huge risk in making him redundant unless there is a real possibility of redeployment within a reasonable time frame.

    But if I were him I would get a cast iron guarantee of redundancy pay then continue to claim full sick pay as long as possible / as long as you will let him.
  • In reply to Keith:

    Thank you Keith. I believe continuing with redundancy process would be better financially for the employee
  • Hi Carol

    I don’t follow your concern about it being discrimination if you don’t apply the redundancy process to him at the same time as his colleagues. It would be discrimination, but in his favour as he will stay on the payroll longer than them. Have I misunderstood? In addition, the employee already knows about the site closure and the redundancies. If you talk to him to explain that you are trying to find the fairest route through the situation for him and listen to any concerns or suggestions he might have, he is highly unlikely to complain about discrimination. People only do that when they feel they have been treated unfairly.
  • In reply to Elizabeth Divver:

    Hi Carol

    Although these matters are intertwined as they impact upon this employee personally, think it’s advisable to deal with them them quite separately:

    (A) Impending redundancy: - this presumably is totally unconnected with the accident, so proceed for now as if the accident hadn’t happened and treat consultation etc just the same as you would with any other affected employee who happens to be away on long term sick.

    (B) Personal Injury / Employers Liability Claim - keep your liability insurers and / or their claims solicitors informed about the effects of the impending redundancy and listen to their comments or advice or requests but otherwise leave it all to them - it isn’t your direct concern. Part of the claim may well involve loss of future earnings, which obviously will be affected by impending redundancy, but leave it to the insurers to deal with this.

    (C) Welfare and well-being of the employee - do your Utmost to guide and assist, for example point towards sources of expert benefits guidance (Citizens Advice can be useful) and look at whether any occupational pension provisions eg for ill health / permanent incapacity might apply. Consider how company sick pay etc might be applied. Generally strive to help employee make the best out of a bad situation for them. Of course, if it emerges eg that there are alternatives to actual redundancy dismissal, consider all these, including possibly retaining for time being ‘on the books’ on long term sick, but conclude the process at (A) above up until that point similarly to rest of affected employees.

  • In reply to Elizabeth Divver:

    Hi Elizabeth
    I take your point and would agree the intention of the company is not to treat him unfairly and disadvantage in any way but the colleague may well perceive that by not dismissing on redundancy grounds end of March, then he is financially disadvantaged in that he is not receiving his redundancy pay. I suppose we could go down the normal process of establishing if the colleague wants to be redeployed and give him the option
  • Another question is whether to apply to if your employer abuses their position and relations in the police to put pressure on you... I'm thinking of applying to AAAPPP, has anyone heard about it anything? Please, help! Thanks.

  • The fact you have been made redundant while injured should not be an issue. As long as the reason for the redundancy is not related to the injury itself, it's perfectly legal. In effect, you are to be treated as any other employee when determining redundancies. Your injury neither helps nor hinders you in that sense.

    However, you should still be eligible for coverage by their medical insurer, and probably SSP, since, even though your current job no longer exists, you are prevented from finding another job by the injury.
  • In reply to arrius:

    I think the issue that troubles Carol is as Keith pointed out at the top of the thread: would it be a reasonable adjustment for someone with a disability to take him out of the process, continue paying him but charge him to another site? That seems problematic to me when the whole site is closing. Once you have started paying him from another site, I think you might have lost the option of making him redundant as he is now on the payroll without a job that exists anywhere. What would be the change that would create a redundancy situation then? I still feel I'm missing something here!

  • In reply to Elizabeth Divver:

    I am surprised that no-one has addressed the issue of the plan to dismiss on capability grounds if he does not recover. His job will still be redundant. You are just postponing it
  • In reply to Peter Stanway:

    My thoughts too, Peter
  • Steve Bridger

    | 0 Posts

    Community Manager

    17 Feb, 2021 09:11

    I wonder if might update us, given this thread is from 12 months ago.
  • In reply to Steve Bridger:

    Hi Steve,

    The colleague remained on the books after the closure of the site and redundancy consultation continued. Colleague decided to take redundancy!! Thank you for all your input