There are several instances where an employee needs to be consulted prior to a change, for example in the event of a restructuring, redundancy programme, terms and conditions change or potential TUPE transfer. Here are some tips on handling organisational change in respect of absent employees.
Don’t exclude or overlook
It seems obvious, but it’s surprisingly common for employers to literally forget to include employees who are on long-term absence when it comes to organizational change. Sometimes there is an ‘out of sight out of mind’ mentality, and in the stress and difficulty of managing a difficult change situation, those who are not regularly around can be overlooked.
By overlooking employees who are absent, or not treating them the same as employees who are at work in terms of opportunities for redeployment/alternative vacancies when it comes to a redundancy situation, you are risking a discrimination claim, as frequently conditions which result in long-term absence would constitute disabilities. Assumptions can sometimes be made about whether the employee would be interested in other vacancies, or in having their say about selection criteria, but this is risky, as if the employee loses out as a result of assumptions, the employer is legally vulnerable.
Keep them informed
Employees on long-term sickness absence should be given the same information as those in work, receive the same written details of what’s happening and given the same access to vacancies.
Be flexible about consultation
Employees on long-term sickness absence have just the same right to be consulted as employees who are at work. If you don’t consult meaningfully with absent employees any redundancy decision may be unfair. Where possible, you should enable the employee to play an active role in any consultation process. What this actually looks like will vary depending on the employee’s physical or mental health status, and also on their preferences and personal circumstances, so you must take a flexible approach if possible.
Holding meetings with them in person is best if possible, and this might involve home visits or meetings at other locations. If meetings aren’t an option, teleconferencing, phone consultations or written correspondence should all be considered and the employee’s preferences taken into account.
Don’t exclude from appointments
If part of the change process you are going through includes appointing people to new roles, you must not exclude employees from new appointments because they may be unable to start work in new roles straightaway.
Their skills, experience, knowledge and whatever other criteria you are using must be taken into account when deciding, and if this means appointing them to the role but having to wait for them to return and cover the work in the interim, this is what you should do.
Consider adapting recruitment procedures
Similarly, when deciding on a procedure for selecting employees for available posts during a restructuring or redundancy exercise, you may need to adapt the procedure to accommodate long-term absentees, particularly if the condition they are absent with constitutes a disability. If they can show that the procedure used disadvantaged them, you are legally vulnerable to an unfair dismissal and/or discrimination claim.
You might therefore wish to consider tele- or video-conference interviews, extra time to prepare written submissions, or other adjustments to procedure to ensure absentees are given a reasonable opportunity to be fairly considered.
If you would like more guidance on how to deal with organisational change when long term absentees are involved do get in touch.