Hello all,

I've googled this but still unable to find proper answer.

I'm on long term sick leave now, with no idea when I become fit for work (depends on NHS and that is a story by itself:P)

My contract started in July 2008 with 3 months probationary period. Verbally they confirmed sometime in October that my position was permanent.

I had a freaky accident in January 2009, fractured my foot and had to remain indoors on crutches for quite a long time, upto April. I have medical problems related to the injury so doctors don't advise me to walk too much.

Recently my employer called me and told me that due to downturn in business three positions have been shortlisted for redundancy and naturally my position was amongst them.

I attended consultation last week (although doctors didn't recommend that) and I was informed about the situation etc.

This week they informed me about their decision by email (of course I was made redundant, who would think anything else? )

So, the most important question is: when can they make me redundant. Of course, at the moment they have made the position redundant. However they should carefully consider me for alternative positions, correct? And since I'm unable to work, it is nonsense to offer me any alternative right now anyway.

So, applying some most basic common sense, they should wait now until my sick leave is over and then consider me for alternative positions, right?

In case it is not correct (law is know to be against common sense anyway) and they give me notice whilst I am on sick leave, what kind of money shall I expect from them?

In case they cannot give me notice now, and my position has been made redundant as of this week, when I return to work (certified by doctors to be fit, of course) they need to either offer alternative (there is another employee, for example, with a similar position and in fact I was covering that position for several weeks last year when it became vacant) or pay me notice in lieu with full salary. At least it is the way I look into this situation....

Hi sergie,

The position that you work in is being made redundant. This is being done for business reasons.

What your employer needs to demonstrate is whether the decision to make you as the person in that position redundant was taken fairly, in other words what considerations were taken into account when deciding who was to be let go.

If your employer can show that the decision was taken fairly then is not much you can do as your employment rights are not so strong due to your length of service (less than 1 year).

You would not therefore be entitled to any redundancy pay as this will only kick in after 2 years service.

As far as your sick leave is concerned you do not yet have return date while this should not have been a contributory factor, there may have been an underlying thought that you were an easy target and therefore you were "pre-selected" but again it would be difficult to prove.

You can be dismissed while on sick leave but there is a whole different procedure to go through which is much more complicated and your "redundancy" would be the easier option.

So unless you feel that the consultation you attended was unfair in its decision there is not much you can do.

You should be given at least 1 week of notice pay and you will also have been accrueing holiday pay while on sick leave.

Sorry if this is not what you want to hear

Beau

Thanks for the quick reply,

They owe me one month (contractual) notice.

I understand they can make me redundant, however I still don't understand about notice period. Will they pay me for that? And if so, when?

Because I know some similar cases, where a person was made redundant (more accurately his position) and he remained on sick leave until doctors gave him "fit for work" letter. Then he received his redundancy pay and month notice in lieu (as there was no position to return to, of course).

Similar scenario would fit me, I don't like this company anyway and not holding to that particular job. You see, they can of course make my position redundant, but can they actually dismiss me (as redundancy is a form of dismissal) when I am on sick leave?

As for the holidays, interesting point here. My holiday year runs from 1st of Jan to 31st of December. Naturally I haven't worked much before the incident. Do I earn any holidays whilst on sick leave?

Holidays are not effected by sick leave, for example should someone take 20 weeks sick leave in a year they are still entitled to full holiday pay.

Thanks for the quick reply,

 

They owe me one month (contractual) notice.

 

I understand they can make me redundant, however I still don't understand about notice period. Will they pay me for that? And if so, when?

 

Because I know some similar cases, where a person was made redundant (more accurately his position) and he remained on sick leave until doctors gave him "fit for work" letter. Then he received his redundancy pay and month notice in lieu (as there was no position to return to, of course).

 

Similar scenario would fit me, I don't like this company anyway and not holding to that particular job. You see, they can of course make my position redundant, but can they actually dismiss me (as redundancy is a form of dismissal) when I am on sick leave?

 

As for the holidays, interesting point here. My holiday year runs from 1st of Jan to 31st of December. Naturally I haven't worked much before the incident. Do I earn any holidays whilst on sick leave?

Hi Sergie,

Yes, you should get paid for your contractual notice period, I will explain 2 possibilities.

If you were to be made redundant with 1 Month notice from today, you should today receive your wages made up to 14 June. This date then becomes your leaving date.

Your employer on the other hand may wish you to work your notice period and so may wait until you are fit for work again. In this scenario you would have to work until 14 June to get your 1 months pay.

Your Holiday accruing as "old andrew" has pointed out should not be affected by your sickness----but it would be a brave man that says you will get all of your entitlement paid. I would say you will only get the Stautory Minimum holiday pay that you have accrued to you leaving date. This again depends on your local Terms & Conditions of Employment.

I presume you are waiting for official confirmation of your redundancy, this will more than likely tell you what the employer thinks you will be entitled to.

Beau

Hi Sergie,

Looking again at your holiday, would I be correct to assume that you haven't taken any annual leave if that is the case then you will have accrued at least 4 months annual leave.

Regards

Andy

Hi Sergie,

If you were to be made redundant with 1 Month notice from today, you should today receive your wages made up to 14 June. This date then becomes your leaving date.

 

Your employer on the other hand may wish you to work your notice period and so may wait until you are fit for work again. In this scenario you would have to work until 14 June to get your 1 months pay.

 

Your Holiday accruing as "old andrew" has pointed out should not be affected by your sickness----but it would be a brave man that says you will get all of your entitlement paid. I would say you will only get the Stautory Minimum holiday pay that you have accrued to you leaving date. This again depends on your local Terms & Conditions of Employment.

 

I presume you are waiting for official confirmation of your redundancy, this will more than likely tell you what the employer thinks you will be entitled to.

Thanks for such in-depth explanation.

However I may be dumb but still don't get one thing:

may wish you to work your notice period and so may wait until you are fit for work again

That is exactly one of the issues I wanted to find out about When will this notice start? When I'm fit to work or when I'm on sick leave?

Since last wednesday, I haven't still got any formal notice as yet. Although they told me I'm redundant by email. However I don't think this counts as a notice as yet, as they have called me for the next consultation (due to happen today).

However I've been to the clinic for my weekly appointment, and the doctor told me that is probably better in my condition not to attend the meeting as yet (as it requires travelling on public transport and I'm on medication etc).

I have also received a sick note stating that my sick leave will last at least until 18 June. So it is official I won't be fit for work for a month. So you see what I'm worried about: if they give me notice now and pay full month wage in lieu it is one thing. If they pay me just SSP for that month that is totally different and certainly bad thing.

As for the holidays, my contractual holiday is pretty much same thing as new statutory minimum, just defined differently. It is 20 days exclusive of bank holidays. As well, it is not 4 months the way I see it, it is 6 months as notice period should be included as well (unless they pay in lieu, correct?). As even if they give me notice today (what I'm not so certain if they can) there will be roughly 6 months before it ends (obviously I didn't take any holidays in January, as my holiday year starts on 1 Jan)

As regards when your notice period will commence, this will be when you are given formal notice that your role has been made redundant.

Notice pay is a deceptively complicated area of employment law.

1) I'm afraid there are some 'weird' exemptions that can apply in certain circumstances e.g. where the employee is sick for the duration of the notice period - like you may be.

Basically if your contractual notice period is at least one week longer than the stat min there is a possibility that your employer only has to pay your your stat notice period and not the contractual one (s.87(4) ERA 1996).

This may not apply to you - you need to tell us your precise start date, and what the contractual notice period due was, i,e, we need to know what your contract said re notice (in weeks) due from employer to you at the time of your dismissal.

Pls post this info

2) The calculation of the amount due in notice pay, can also differ, depending whether in law you have, or do not have, 'normal working hours'.

Assuming the latter, then whilst payments of SSP can be offset against it, your notice pay should be calculated on a 'normal weeks pay'

Thus how was a ' weeks pay' to be calculated according to the contract e.g set hours per week and £x.xx per hour or monthly salary or some other method?

See this thread also:http://www.consumeractiongroup.co.uk/forum/employment-problems/188425-redundancy.html

Che

Right,

first of all believe it or not, but majority of people maybe without any reason but sincerely believe that dismissal on sick leave is not possible.

An example of this as follows:

Dismissal whilst on sick-leave ? - Yahoo! UK & Ireland Answers

Yes I do have normal working hours and a salary. My contractual notice is one month, started on 8th of July 2008.

They have confirmed my dismissal by email and will post me a letter. Notice period starts from 20 May and runs up to 17 June (???). I have already obtained a certificate which states I'm on sick leave until 18 June.

They do not pay me notice in lieu.

P.S. I'm aware about that dumb notice calculation. Basically thing is that if you worked less than 2 years or so, you are better off when you have no typical contractual notice of one month, you will get much better payment if you go off sick instead of working your notice.

However it is still good industry practice to pay notice in lieu whilst on sick leave, but of course it is not enforced by law.

Hi Sergei,

The explanations in the link you have posted are contradictory and I would suggest this site has more experienced answers to your precise problem.

You have been employed for less than 1 year which makes your position somewhat weaker than perhaps an employee who has 12 months or more service.

Statutory Notice period for your length of service should be 1 week. This should be paid as 1 week of your normal pay whatever that may be. This can be varied by local employment terms and conditions, does yours state specific notice periods for specific lengths of service? it should do.

Statutory Sick pay is as it suggests Statutory and therefore your employer cannot penalise you for the sick pay during your notice period.

You should receive the statutory minimum accrued holiday pay for the length of service less any holidays taken and already paid.

That is all you will be entitled to by law, there will be those that argue that morally this is wrong and that good practice would be to wait until the Sick leave is completed but these are tough times i'm affraid.

Beau

I agree it is unethical and even ACAS good practices recommend to pay entire notice in lieu, but it is no way a requirement so employers drop their responsibility at any time.

However it would be quite easy to prove that it was unfair to dismiss me as they cannot consider me for alternative position if there's no exact date given by doctors when I become fit for work. Of course, with the requirement of one year or more service it is not possible in my case.

I've been to an appointment at CAB. They will review my employment contract, formal redundancy letter etc and hopefully find a way out of this situation. Chances are low but it is possible that my employer made some mistakes during the redundancy process so it would be possible to catch them on technicalities. Other than that, there's nothing else to do...

 

first of all believe it or not, but majority of people maybe without any reason but sincerely believe that dismissal on sick leave is not possible.

 

An example of this as follows:

Dismissal whilst on sick-leave ? - Yahoo! UK & Ireland Answers

I'm sorry Sergei, this is incorrect. In my professional life I have advised on many medical capability dismissals. Whilst your employer is claiming your dismissal is due to redundacy, the basic process for a medical capability dismissal is:

As for whether any eventual dismissal, is fair will depend on factors including (but not limited to):

a) The type of job you did and what reasonable adjustments could have been made to accommodate your health condition

b) Whether your employer looked at alternative jobs you could do in their organisation

c) What exactly the medical evidence said and whether your employer has attempted to obtain up to date medical evidence

d) Whether you were warned in advance of any medical capability hearings, that dismissal was a possibility

If an employer follows all the correct procedures a dismissal of a sick person can be a fair dismissal. And, in your case your position is further weakened by having less than 1 years service.

That said, if you can link your condition to a medical condition covered by the DDA, you would not need 1 years service to bring this claim. If you claim disability discrim predicated the dismissal, it would then be for your employer to show it was a genuine redundancy situation and that it was procedurally correct.

Che

I've just received a letter from CAB with a written review on my case.

As I suspected, it was a complete waste of time. Basically I see nothing new in their letter. I was well aware I'm unable to get redundancy pay and that my SSP eligibility ends with the last day of the contract.

I'm still quite confused why my notice ends on 17 June it it started on 20 May.....

@elche: medical capability doesn't apply in my case. It is a single injury and even with NHS I can still expect nearly full recovery (and even substantial recovery is enough for me to perform my duties). Only thing that NHS is unable to provide is the ETA for the recovery. So medical issues are not even related to this matter, only difference they make is the uncertainty when I become fit for work.

That leaves me in a very inconvenient situation. I will lose the right to get SSP in the second half of June with no certain date to start a new job. It is even pointless at the moment to look for a new job, as no employer would be happy to employ someone with no exact date of availability.