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Posted By Mark J. Jones
I have been asked to provide advice regarding a claim for unfair dismissal.
The scenario is as follows:
Employee 'A' with 5 years service takes sick leave for a surgical operation necessary on medical grounds, develops a complication and is off work for about 3.5 months (all with appropriate medical certification).
In the absence of employee 'A', the employer takes on temporary cover, employee 'B'.
Employee 'A' returns to work and is told that they are to be made redundant with immediate effect on the basis that the workload no longer exists at a level to warrant continued employment.
The employment of employee 'B' continues.
Based on this limited information, is there a case for unfair dismissal?
Thankfully I am not representing the employer.
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Posted By Sean Fraser
On the basics supplied, the answer is a tentative "yes". It should be remembered that redundancy involves the removal of the position, not the person from it. This scenario sounds very much like the ones used in employment law studies to explain the difference between redundancy and dismissal.
However, not being an HR specialist I only have a rudimentary grasp of the subject through management studies.
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Posted By Jim Walker
Again, like the previous respondee, I'm no expert but assume the Disability Discrimination Act might be valid too.
Employee "A" was temporaryly disabled.
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Posted By Michael T Austen-Davies
When employee B took over employee A's job originally, then I'm guessing that the role had not initially been 'diminished'. So, employee B was temporary staff, filling in for sickness absence.
When employee A returned, then employee B should have been released and the negotiation about the job should have took place with employee A.
I'm no expert either (not by any means), but if I were in employee A's shoes I would be seeking union support in going for an IT for unfair dismissal.
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Rank: Guest
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Posted By Mark J. Jones
Many thanks for the response - please keep them coming.
Are you aware of any relevant case law?
Mark
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