Dealing with employee absences and grievances in redundancy consultation.

You’ve delivered the at risk letter and sent the employee home on pay pending the formal consultation meeting. As an HR professional it is possible that your faith in human nature has become a little corroded over time, so you are not completely surprised when what turns up at the appointed hour is not the employee, but a letter from his solicitor saying that he is unable to attend because he is suffering from stress or depression or, because it has fewer insurance implications, from Low Mood.  Alternatively the letter may contain a grievance of some sort which “has to be resolved before it would be fair to continue with the redundancy process”.

It is of course possible that you might see this as a transparent attempt to prevent or at least delay in the inevitable. You might be right, but equally you might not.  Therefore, unless you are willing to take that risk, HR must treat these things reasonably circumspectly.  Here are some tips which may help:

• Any scepticism about the genuineness of an illness or grievance should be put in writing only if you have the very clearest evidence that it is baseless. Remember that HR’s communications with either the line manager or senior management on this will be disclosable in a Tribunal.

• If you seek medical evidence to support the absence, quote to the doctor the 2012 guidance of the Royal College of Physicians to OH practitioners concerning patients’ attendance at “difficult” workplace meetings – in brief, that except in the very rare circumstances where attending the meeting will do active psychiatric harm, it will generally be in the employee’s best interests to get it over with, even if it is a stressful and unpleasant experience.

• Offer to conduct the consultation meeting by phone or Skype, at the employee’s home or a neutral venue, with breaks, with a companion, through written representations, etc, so as to demonstrate your accommodation of his condition.

• Be willing to postpone the consultation meeting once or twice but only if that will not leave others in the selection pool in limbo for any extended period. If you do have to press on for that reason, make sure the employee knows that his continued unavailability to meet/ talk will lead to a decision being made on his redundancy without the benefit of any points he might have wanted to make.

• Where the derailing issue is a grievance, consider whether what is being complained of is in fact just the employee’s defence to the redundancy proposal. “My manager is out to get me”, “No fair process could leave me scoring lower than X”, “My job still exists so the whole process must be flawed”, “You ought to have moved me straight into an alternative role”, “The scoring process discriminates against me because I am pregnant/disabled” would all fall into this category. They are all potentially valid arguments which could and should be raised at the consultation meeting after the employee is put at risk but before any final decision is made. In those circumstances the appropriate course would generally be to tell the employee that you are combining his grievance and redundancy consultation meetings so that he will get a full opportunity to make his points, but will not have to rehearse them all twice. If he still refuses, convene the meeting anyway, do what investigation you can of the issues he has raised, and make your decision.

• Where the grievance is about the intended decision-maker, however, that will not work. That might include complaints that he/she is biased (especially including discrimination or past whistle-blowing) or is fundamentally under-equipped on some other basis. If the person impugned just sails on with the redundancy decision, the scope for a claim for unfairness is obvious, not just in relation to the initial underlying issue but also compounded by inevitable irritation about the aspersions cast on his/her professionalism by the employee at risk. The trouble is that even if you do stall the redundancy process to hear that grievance, and even if that grievance is categorically rejected, that inevitable irritation remains. So where the Company hierarchy is deep enough, we might advise side-stepping the grievance by having someone else hear the employee’s representations against redundancy or, as a minimum, having the manager accused hear them with at least one other of similar seniority so that it is (hopefully) a joint decision.

• If your business is small and/or the person at risk is senior and/or has basically accused the whole of management of bias against him, don’t worry. In particular, don’t be tempted by the employee’s suggestion to have an external HR consultant make your redundancy decisions. Such consultants may appear superficially independent and so attractive in these cases, but they don’t know your business, don’t know the individuals concerned and (if the decision goes against the employee) are always vulnerable to allegations of pandering to their paymaster anyway. Provided that you explain the position to the employee, make a reasonable and demonstrable job of investigating whatever evidence of bias he can come up with, and produce a decently-ordered set of conclusions, the Tribunal can ask no more.

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