Reports have surfaced that EasyJet intends to use sickness absence and a selection criteria when deciding who will be made redundant. Naturally, this has raised some serious concerns, but is it legal for employers to consider sickness absence in this way?
Short answer - yes. Long answer - tread carefully!
When employers need to make a specified number of redundancies from a particular group (or "pool") of employees who undertake a similar type of work, they will likely use selection criteria to decide who stays and who goes. Employees within the pool can be given marks for each of the different criteria and, typically, those with the lowest scores will be given their notice.
But what are reasonable criteria to use? Can a manager simply rank employees based on who they like the most? Clearly not - this sort of subjective assessment could very likely lead to a successful claim for unfair dismissal. Instead, employers should use objective criteria such as skills and knowledge or disciplinary record. Subjective criteria are sometimes appropriate (such as demonstrating company values) but only where they can be applied objectively and transparently. In general, try to use criteria that are measurable, can be appropriately moderated and are not based on one person's opinion of another.
Attendance records would therefore seem like a perfect criterion. An employer can easily measure attendance, apply a numeric ranking to it, and compare between at-risk employees. However, it is generally unwise for employers to rely on absence levels too heavily.
Consider why an employee may have high levels of sickness absence. Disability and pregnancy can both lead to health related absences. There is significant legal protection for pregnant workers and it is unlawful to treat an employee less favourably because of something arising from their disability. Additionally, think about whether the absence may have been caused by the job itself - it will likely be unfair to dismiss an employee because of an illness or injury suffered at work.
Also, think carefully about the period of time over which attendance is assessed. If an employee has decades of service, employment tribunals won't look kindly on a dismissal based on six months' worth of absence records.
Aside from all of this, as today's news tells us, sickness absence as a selection criteria is unlikely to be popular and can lead to bad publicity.
Overall, while attendance can be a relevant selection criterion, and is in fact a criterion that many employers consider in redundancy selection, it should always be considered along other criteria and should not be the deciding factor. Hopefully EasyJet has some other, less potentially discriminatory, criteria on its list.
Ahead of the start of formal talks, Balpa said the airline has told pilot representatives it will use sickness as a component in choosing who loses their job.