UK Employment Law Coffee Break: Long-term sickness, redundancy selection and our HR immigration spotlight

Long-term sickness on the rise: considerations for employers 

The ONS has published its latest long-term sickness figures reporting that the number of working-age adults who are out of the labour market (known as "economically inactive") because of long-term sickness has been rising since 2019, from around 2 million people in spring 2019 to about 2.5 million in summer 2022. Although it is noted that the rise in long-term sickness started before the Covid-19 pandemic hit the UK in early 2020, since then the number of people out of work because of long-term sickness has risen by 363,000.  

The ONS notes that a range of factors could be influencing this recent increase but that "more understanding is needed about the impact of NHS waiting times, long Covid and the ageing workforce".  Some industries such as wholesale and retail have also been affected more than others; it may well be that those businesses with hybrid working environments see less formal sickness absences with employees feeling more able to continue working from home despite their illness. 

In the current economic downturn many employers are looking at ways to save costs and it is feared that one casualty of this could be continued investment into employee wellbeing programmes and other measures to support employees' physical and mental health. With Public Health England (now the UK Health Security Agency) reporting that the total economic cost of sickness absence, lost productivity through worklessness, informal care-giving and health-related productivity losses are estimated to be over £100bn annually, it is likely to be a false economy to cut back on the assistance available.   

Getting the approach to both long term and short term sickness absence right requires more than just a clear policy. A consistent approach should be taken to managing sickness absence so far as possible with flexibility and other support measures implemented to keep employees able to continue working. Where an employee has a disability, reasonable adjustments will need to be explored and put in place. 

As well as the direct costs of sickness absence such as sick pay and temporary cover for the role, the broader impact of the absence (on other employees, management time and HR issues, as well as the effect on client service and productivity) is considerable. Proper support from managers and access to wellbeing programmes increases the likelihood of the employee successfully returning to work and decreases the overall direct and broader costs of sickness absence. Training and guidance for managers on both the legal framework and practical measures to take when employees are off work sick is critical to ensure employees are supported in returning to work at the appropriate time. 

This Thursday (18 November), the chancellor, Jeremy Hunt, will deliver the autumn statement against the backdrop of concerns around the current state of the economy. The Institute of Employment studies has identified four key priorities arising out of the latest Labour Market statistics including broadening access to the "Restart Scheme" under the Plan for Jobs, improving access to specialist health and work-related support, reforms around public sector pay and to increase investment in skills and training, particularly for those out of work. 

At our employment update on 21 November we will be looking at issues for employers arising out of the current economic backdrop and cost of living crisis, as well as tricky issues on workplace investigations. 

Tribunal rules on age discrimination and selection for redundancy

With redundancies on the rise, a recent decision of the Glasgow Employment Tribunal has issued a timely reminder of the careful considerations needed around selection criteria. In this case the claimant who was cabin crew for an international travel operator succeeded in her claim for unfair dismissal, indirect age discrimination and breach of contract where, following consultations with the trade union, the employer devised a selection process described as a "productivity tool" which included an analysis of individual productivity, attendance records, length of service and live sanctions. Due to challenges with this selection criteria, it was reduced to simply include sickness absence triggering the internal absence process, live sanctions (of a disciplinary or performance nature) and length of service.

Following the application of the selection criteria the claimant was identified at risk of redundancy, but she felt that she was discriminated against on the grounds of age given that the reliance on length of service meant that she could never be safe from redundancy and that all those that were safe were over the age of 45. The employer argued that the parameters applied were not just length of service but also attendance and live sanctions, however, on the facts none of the employees in the pool had been scored down for live sanctions and none had met the attendance triggers meaning that length of service was the sole criterion which had any bearing on the selection.

The trade union brought a collective grievance on this point and while it was accepted that seniority was used by the respondent in, for example, promotions, the union's position was that it should only be used in these circumstances as a tie breaker after other criteria were applied. The grievance was not upheld and the employer failed to address the question as whether, in practice, the absence of employees being scored down on the other two criteria meant that length of service was the sole predominant criteria in the vast majority of cases.

The tribunal found this approach to amount to unlawful age discrimination. It was mindful of the fact that due to the different tests which apply, a dismissal tainted by discrimination may nonetheless be fair. The tribunal concluded, however, that it was not within the range of reasonable responses for the respondent to persist with the application of a selection process which was manifestly discriminatory without attempting to address the concerns raised, to identify any alternative criteria which may have been applied, or at least seek to provide objective justification.

With many employers currently faced with considering potential redundancies, it is essential to give careful consideration to any selection criteria applied and to ensure that it does not have an unintended discriminatory effect. Here, the use of length of service as the defining criteria had a disproportionately adverse impact on younger people and in particular, those under the age of 45, and was therefore indirectly discriminatory on the grounds of age.

Before commencing any redundancy selection process an employer should first ascertain whether there are any contractually agreed selection criteria (which may include though custom and practice). Even where this is the case, an employer should still give fresh consideration as to whether previously used criteria could have a discriminatory effect.

Length of service used to be a popular selection criteria used by employers due to its objective nature, however while it still may be fair within the context of broader selection criteria, it does pose potential risks of being indirectly discriminatory on the grounds of age, particularly in the context of an ageing workforce and sex. More generally selecting on this basis does not take into account the skill and aptitude of the employees being retained or selected for redundancy and therefore does not enable the employer to keep its most productive and talented employees.

As well as having fair criteria, it is important to remember that criteria must also be applied fairly in practice and it is important for all those involved in the process to understand the criteria they are applying and to monitor for any unintended discriminatory impact created when the criteria are applied in practice. 

Immigration spotlight: UKVI sponsor licence audits – how to remain compliant

Sponsor licence audits, both pre- and post- licence, are on the rise. How should you stay compliant and what do you need to know about an audit by the UK Visas and Immigration compliance team? Join our immigration team at our webinar on 30 November as we review the duties and responsibilities associated with being a licenced sponsor, the importance of compliance and the cost of getting it wrong. We will also be looking at a practical, real life, case study to show you what to expect on an audit and how to prepare for this. Remember failure to comply with your obligations as a licence holder can lead to your sponsor licence being revoked; compliance consistency is key. You can also click here to sign up to receive our quarterly immigration updates by choosing "Business Immigration" under the "Legal Services" heading.