Sickness absence and redundancy selection

An employee’s attendance record can be used as a redundancy selection criterion (see Chapter 12). However, this can be discriminatory and the Equality and Human Rights Commission (EHRC) advises that employers should use a range of criteria to minimise any discriminatory impact. Attendance can be one of several factors, but it should not be decisive.

Reps should try to negotiate for all absences during the coronavirus pandemic to be excluded when selecting for redundancy, instead assessing everyone who is at risk of redundancy using a period of years leading up to the start of the pandemic. There is plenty of evidence that coronavirus impacted disproportionately on protected groups, such as BAME employees, disabled and older employees and counting these absences risks being discriminatory.

Excluding some or all disability-related absence when selecting for redundancy can be a reasonable adjustment (see page 211).

Pregnancy-related sickness absence must always be excluded since this will amount to pregnancy discrimination, in breach of section 18(2), Equality Act 2010 (see “Pregnancy-related sickness absence”, above).