Being made redundant while you are already dealing with sickness is one of the most stressful employment situations. You do have rights — but the key question is whether the redundancy is genuine or whether your illness has become the real reason.
The Basic Position
| Situation | Lawful? |
|---|---|
| Genuine redundancy of your role while you happen to be off sick | Yes, if fair process followed |
| Using your sick leave as a selection reason | Potentially unlawful — disability discrimination risk |
| Failing to include you in consultation because you are off sick | Unfair dismissal risk |
| Using different selection criteria for sick employees | Likely unfair |
Disability Protections in Redundancy
If your condition is a disability under the Equality Act 2010, additional protections apply:
- The employer must make reasonable adjustments — including to the selection process itself
- Using disability-related absences as a selection factor is indirect disability discrimination unless the employer can objectively justify it
- Selecting you because of your disability is direct discrimination — no justification is possible
A disability for Equality Act purposes means a physical or mental impairment that has a substantial, long-term adverse effect on your ability to carry out normal day-to-day activities. Long-term means 12 months or expected to last 12 months.
Your Entitlements
If genuinely made redundant while on sick leave:
| Payment | Based on |
|---|---|
| Statutory redundancy pay | Normal contractual weekly pay (not SSP), capped at £643/week |
| Notice pay | Normal pay rate (not SSP rate) |
| Holiday pay | Accrued but untaken holiday at normal rate |
SSP does not reduce any of these entitlements. If your employer tries to pay notice at the SSP rate, that is likely an unlawful deduction from wages.
What to Do
- Ask for the full selection criteria in writing
- Check whether your sick leave appears in the criteria
- Request to participate in consultation (phone or video if needed)
- Seek advice from ACAS (0300 123 1100) or your union if you think sickness is the real reason
Disability Discrimination Overlap
If you are off sick with a condition that qualifies as a disability under the Equality Act 2010 (substantial and long-term effect on day-to-day activities), redundancy during sick leave has additional complexity:
- Selection process — selecting someone for redundancy because of absences caused by disability may be discrimination (failure to make a reasonable adjustment by discounting disability-related absences from selection scoring)
- Reasonable adjustments — before using sick leave as a selection criterion, employers should consider whether adjusting the criterion is a reasonable accommodation for a disabled employee
- Pre-emptive action — if you know you have a qualifying disability, communicating this formally to HR before or during the redundancy consultation strengthens your position
Disability discrimination has no qualifying service requirement and no cap on compensation. If redundancy is being used as a cover for removing a disabled employee who is a “management problem,” the discrimination award can significantly exceed the unfair dismissal compensatory cap.