This guide is maintained as a current resource for July 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
A comprehensive guide on redundancy while off sick in England and Wales, explaining employee protections, fair selection criteria, consultation duties, redeployment options, tribunal claims, and remedies for unfair dismissal or discrimination.
In England and Wales, employees who are off sick are entitled to the same protections against redundancy as other staff. Redundancy while off sick is lawful if the dismissal is genuine, fair, and unrelated to the employee’s absence or health condition. However, if an employee is selected for redundancy due to illness, or if the employer fails to follow fair procedures, the dismissal may be considered unfair or discriminatory under the Employment Rights Act 1996 and the Equality Act 2010.
Legal Framework
Key legislation relevant to redundancy while off sick includes:
- Employment Rights Act 1996 – sets out statutory redundancy pay, notice periods, and protection against unfair dismissal;
- Equality Act 2010 – protects employees from discrimination due to disability or long-term illness;
- Acas Code of Practice on Redundancy – provides guidance on fair selection, consultation, and consideration of alternatives;
- Maternity and Parental Leave Regulations and other related employment protections where illness intersects with protected leave.
Tribunals consider whether redundancies are genuine and whether employees on sick leave were unfairly targeted or overlooked for redeployment.
When Redundancy During Sickness Is Lawful
Redundancy can lawfully affect employees on sick leave if:
- The redundancy is genuine – the employer can demonstrate that the employee's role is no longer required;
- Selection criteria are objective – decisions are based on business needs, not absence;
- Consultation is fair and timely – employees are informed and consulted even while absent due to illness;
- Alternatives are considered – suitable redeployment or adjustments are explored;
- Documentation exists – records of the decision-making process and justification for selection are maintained.
Risks of Unlawful Redundancy While Off Sick
Redundancy may be unlawful if:
- Absence influenced selection – selecting employees for redundancy because of sickness absence may constitute unfair dismissal;
- Failure to consider disability – long-term illness or disability is a protected characteristic under the Equality Act 2010;
- Improper consultation – failing to consult or offer redeployment to an absent employee;
- Inconsistent application of criteria – applying different standards to employees who are off sick compared with those at work.
Employees with a disability may also have additional protection under reasonable adjustment duties, and dismissal could be discriminatory if proper adjustments are not considered.
Consultation and Communication
Even when an employee is off sick, employers must:
- Conduct a meaningful consultation regarding redundancy;
- Provide clear information about selection criteria and reasons for redundancy;
- Discuss possible redeployment options and any workplace adjustments;
- Maintain communication and allow the employee to participate in the process.
Failure to do so may strengthen a claim for unfair dismissal or discrimination.
Employee Rights
Employees off sick retain the right to:
- Be informed and consulted about redundancy;
- Appeal redundancy decisions;
- Claim statutory redundancy pay if eligible;
- Seek remedies through an employment tribunal for unfair dismissal or discrimination;
- Request redeployment or reasonable adjustments if disability-related.
Early advice from a solicitor or trade union can improve the chances of a successful claim.
Practical Guidance for Employers
To reduce legal risk, employers should:
- Ensure redundancy decisions are based on business needs, not sickness absence;
- Apply consistent and objective selection criteria across all employees;
- Consider redeployment and reasonable adjustments for employees off sick;
- Document all consultations, decisions, and communications;
- Maintain open lines of communication to allow participation by absent employees.
Following these practices ensures that redundancies are lawful, fair, and defensible.
Key Takeaways
Redundancy while an employee is off sick is lawful only if the process is genuine, fair, and not influenced by sickness absence or disability. Employers must follow proper consultation, apply objective selection criteria, consider redeployment, and maintain documentation. Employees have rights to redundancy pay, consultation, and legal remedies in cases of unfair or discriminatory redundancy. Compliance with statutory protections under the Employment Rights Act 1996 and Equality Act 2010 safeguards both employer and employee interests.
