Employee due to be made redundant now off sick. What can we do?

[GrumpyOldHorsewoman]

DH and I have our own business with horses and employ 16 staff. We have (within the past two months) sold or re-homed a number of horses and find ourselves overstaffed as there is no sign that these horses may be replaced. As we knew this was happening, we did a points-based assessment of all staff over January. The staff were informed that their performances were under review and which areas we would be focussing on (timekeeping, standards of work, attendance etc). Following the assessment (which was carried out over the whole month) the staff were informed how they had fared. We have one staff member who has been with us for two and a half years who is desperately unreliable and generally carried by the other members of staff, so it was no surprise that he scored the lowest number of points, making him the most obvious choice to be let go. However, he has a girlfriend who had his baby just after christmas and this has complicated matters. His girlfriend is a bit of a nightmare and he has now taken sick leave with stress. He has been off 3 weeks now and has a holiday booked in 3 weeks time, so it is unlikely he will come back to work before then (he has done this several times before - where he goes off sick just before booked holidays, thus extending his time off). He has been off sick every February since he started here for various reasons and knows every single one of his rights and exercises them regularly. The fact that he is now off sick, just as there was a possibility he could be laid off now complicates the issue. He has taken previous employers to tribunals before and I feel he has a plan - not to keep his job, but to push us into a position where he can sue for unfair dismissal so he can get a nice payout. He is clever because his sick leave always involves a condition that cannot be proved or disproved ( stress, backache etc) but we are not wanting to let him go because he takes time off sick, it's because he is the lowest-scoring member of staff when he is here. Is there anything we can do without putting ourselves in a precarious position?

As a fellow business owner I would say this is one situation where paying (even though times are tough) for some really good quality employment law advice from an employment law specialist. From the little I know I think with the right advice and done correctly you can still make this member of staff redundant, but every single step needs to be done correctly. I would suspect it maybe the best money you ever spend.

I would say take legal advice. He sounds like he is a person who may sue for the sake of it, and I am concerned that you have used attendance as a criterion, as that could fall foul of the Equality Act if any of his absence is genuine, and for a disability related reason. Would he still have scored below the others without attendance in your points score?

You say he wants a pay out, and it sounds like he does, so yes you can make him redundant but he has risk written all over him. Does you business insurance cover any legal advice? If not do you have a trade association or similar who might?