An employer is entitled to dismiss an employee for sickness in certain circumstances, provided they first follow an appropriate procedure. If an employer is too quick to dismiss someone who is off work due to illness, then the individual might have a claim for unfair dismissal and/or disability discrimination.

The circumstances of every case are likely to be different. For example, an employee may have a history of short-term absences consisting of a series of minor unconnected ailments such as colds and stomach upsets or recurring conditions, like back problems or respiratory complaints. Alternatively, an employee may have ongoing absence caused by a long-term injury or illness, for example a stress related condition.

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Unfair dismissal following sickness

An employee who has been employed for at least two years is protected against being unfair dismissal, and can bring a claim in the employment tribunal to enforce such protection if they are fired for being off sick.

Dismissal of an employee with two or more years’ service will deemed unfair, unless the employer can show that:

• it had a potentially fair reason for the dismissal
• it acted reasonably in the circumstances
• it followed a fair procedure in carrying out the dismissal

Capability, i.e. the ability to do the job, is a potentially fair reason which would cover sickness. Where absences are for unconnected health reasons (rather than an underlying condition), the employer may dismiss for some other substantial reason (SOSR). In this circumstance, they may argue that the disruption caused by the employee being off work can no longer be effectively managed and is damaging the employer’s business.

An employment tribunal will go on to consider whether the employer acted within the range of reasonable responses in deciding to dismiss the employee at that time. While there will come a point at which an employer is entitled to take action, it must still have given adequate warning to the employee that dismissal was a possible outcome if attendance did not improve.

What does a fair dismissal procedure look like?

The ACAS Code on disciplinary and grievance procedures does not apply to capability dismissals for ill-health. However, this does not mean that an employer is excused from going through a procedure prior to dismissal.

In cases of long-term ill health an employer should obtain an up-to-date medical report to establish the likely prognosis for the individual and whether any improvement might be expected in the short to medium term.

An employer must also investigate, ideally in consultation with the employee, whether any adjustments might be made to assist the employee in returning to work. The employer must ensure that it consults adequately with the employee and gives them the chance to make representations to it. Appropriate warnings that the employer will consider dismissal should also be given.

In cases of short-term absence, it may not be appropriate to obtain a medical report prior to dismissal. However, an employer should:

• carry out a fair review of the attendance record and the reasons for absence
• consult with the employee and give them the opportunity to make representations
• give appropriate warning about dismissal if things do not improve (and be clear about what improvement is required)

Attendance management procedures

Many employers have their own internal procedures for managing attendance. These often lay down rules for dealing with individuals once a certain level of absence is reached within a certain timeframe. Such procedures contain trigger points at which the employer will take a certain step such as giving a written warning.

Employers must follow their own procedures correctly and sanctions should be applied consistently. It should be clear which policy is being followed and the consequences of failing to comply with the procedure must be plainly communicated to the employee.

What if I don’t have two years’ work service?

Even if you have not been in employment for two years or more and are therefore not eligible to bring an unfair dismissal claim, you may be protected by disability discrimination law. There is no minimum period of service required before you can bring a claim.

If your absence is related to an illness which means you are considered by the law to be disabled, then a dismissal due to your sickness absence may be discriminatory. A person is regarded as disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Individuals with dyslexia and diabetes have been held to be disabled, but ultimately only a tribunal can decide on whether someone is disabled and the law around this is complex. It is therefore sensible for employers to generally assume that someone is disabled to avoid falling foul of the law as compensation for disability discrimination is potentially unlimited.

In addition, an employer has a duty to make reasonable adjustments to assist disabled employees who are on sick leave to return to work. A reasonable adjustment may include changing trigger points in absence management procedures to give an individual more time to recover.

Less than two years’ service, not disabled and dismissed for sickness?

Even if you cannot bring an unfair dismissal claim due to short service and your illness does not render you disabled, a dismissal for sickness absence may be discriminatory on other grounds such as sex or age. This will depend upon the circumstances of your dismissal.

Permanent Health Insurance schemes and pensions

If an employee is entitled to benefits under a permanent health insurance scheme (PHI) provided by their employer, then they should not be dismissed as this is likely to mean that their entitlement ceases and the employer would be liable for that loss of benefits. See our recent article for more information.

Equally, in cases of long-term ill health where there is no prospect of the individual being able to return to their job, an employer should always consider whether it is appropriate to assist the employee in making an application for early retirement (on the grounds of ill health) from any occupational pension scheme.