Dismissal During Sickness

Being dismissed while sick is possible, but employers must follow fair process and consider alternatives before terminating employment.

Can You Be Dismissed While Off Sick?

Short Answer

Yes - there's no automatic protection from dismissal just because you're unwell.

But It Must Be Fair

To be fair, the employer must:

• Have a potentially fair reason
• Follow a fair procedure
• Act reasonably in all circumstances

Fair Reasons for Sick-Related Dismissal

Reason	Basis
Long-term absence	Capability (unable to do the job)
Frequent short-term absence	Capability or conduct
No prospect of return	Business need
Role can't be kept open	Some other substantial reason

Long-Term Sickness Absence

When Dismissal May Be Fair

After reasonable period, if:

• Medical evidence shows unlikely to return soon
• Business genuinely can't keep role open
• Reasonable adjustments have been considered
• Process has been followed
• Employee given opportunity to respond

What Employers Should Do

1. Keep in regular contact (sensitively)
2. Obtain medical evidence (occupational health or GP report)
3. Consider the prognosis for recovery
4. Assess impact on business and team
5. Look at alternatives (part-time, different role, adjustments)
6. Give warnings that continued absence may affect employment
7. Meet with employee before deciding
8. Allow appeal against any decision

No Fixed Time Period

There's no rule saying "3 months" or "6 months":

• Depends on circumstances
• Nature of illness
• Size of employer
• Impact on business
• Prognosis for recovery

Short-Term Frequent Absence

Pattern of Absence

Multiple separate absences can also lead to dismissal if:

• Pattern is unacceptable
• Warnings have been given
• Genuine effort to understand causes
• Support has been offered
• No improvement despite support

Bradford Factor

Many employers use absence triggers:

• Certain number of episodes
• Total days in period
• Bradford Factor score

But must still consider individual circumstances.

Distinguishing Genuine Illness

Frequent absences might be:

• Genuinely unconnected illnesses
• Related to underlying condition
• Signs of disability
• Work-related

Each needs different approach.

The Process

Before Considering Dismissal

Employer should:

1. Review absence record
2. Conduct welfare meetings - understand the situation
3. Obtain medical evidence - OH report or GP consent
4. Consider adjustments - could changes help?
5. Give warnings - explain impact of continued absence
6. Set review periods - monitor over time

Capability Meeting

Before dismissal:

• Invite to formal meeting
• Explain concerns
• Share medical evidence
• Allow employee to respond
• Consider their input
• Make decision
• Offer appeal

Medical Evidence

Types of evidence:

Source	What It Provides
GP fit note	Current fitness status
GP report	Medical history (with consent)
Occupational health	Workplace-focused assessment
Specialist report	Detailed condition assessment

Employee's Right to Respond

You should have opportunity to:

• Attend meeting (reasonable adjustments if needed)
• Be accompanied
• Provide your own medical evidence
• Suggest alternatives
• Explain your situation

Disability Discrimination

When Sickness Is a Disability

Under Equality Act 2010, disability means:

• Physical or mental impairment
• Substantial adverse effect on day-to-day activities
• Long-term (12 months+, likely to last, or recurring)

Additional Protections

If you're disabled:

• Employer must consider reasonable adjustments
• Cannot treat you unfavourably because of disability
• Dismissal could be discrimination if adjustments not considered

Reasonable Adjustments

Examples:

• Phased return to work
• Amended duties
• Different role
• Flexible working
• Time off for treatment
• Workplace modifications

Discrimination Claims

If dismissed when disabled:

• No qualifying service needed
• Can claim disability discrimination
• Can also claim unfair dismissal (if 2 years' service)
• Compensation unlimited for discrimination

Your Rights While Off Sick

Contractual Rights

• Receive any contractual sick pay
• Accrue holiday entitlement
• Maintain employment benefits (check contract)
• Be informed of any job changes

Communication

Employer should:

• Maintain reasonable contact
• Not pressure you to return
• Keep you informed of workplace changes
• Invite you to work events if appropriate

You should:

• Stay in touch as agreed
• Provide fit notes as required
• Engage with occupational health
• Respond to reasonable requests

Challenging Sickness Dismissal

Grounds for Challenge

Ground	Argument
Unfair dismissal	Process not followed, decision unreasonable
Disability discrimination	Adjustments not considered, dismissed because of disability
Wrongful dismissal	Notice not given correctly

Tribunal Time Limits

• 3 months less 1 day from effective date of dismissal
• Must go through ACAS early conciliation first
• Don't delay - time runs from dismissal, not when you feel better

Evidence to Gather

• All correspondence with employer
• Medical records and reports
• Notes of meetings
• Evidence of adjustments suggested
• Comparator evidence (how others treated)

Dismissal During Disciplinary Sickness

If You Go Sick During Disciplinary

Employer can:

• Postpone proceedings if genuinely too ill
• But not indefinitely
• May proceed if you refuse to engage
• Consider alternative arrangements (phone, video)

Medical Evidence

Employer may seek:

• Whether fit enough to attend meeting
• When you might be fit
• What adjustments would help

Can't Use Sickness to Avoid Process

If you're deliberately avoiding:

• Employer may proceed without you
• May make decision based on available evidence
• This could affect your ability to defend yourself

Company Sick Pay

During Notice Period

If dismissed with notice while sick:

• Entitled to sick pay during notice
• Or notice pay if sick pay exhausted
• Check contract for details

If No Contractual Sick Pay

Still entitled to:

• Statutory Sick Pay (if eligible)
• Pay during notice period (if dismissed)

Practical Tips

If Off Long-Term

• Stay in communication with employer
• Engage with occupational health
• Provide updates on recovery
• Consider what adjustments might help
• Get advice early if dismissal threatened

If Facing Dismissal

• Request all medical evidence being relied on
• Provide your own evidence if different
• Suggest alternatives to dismissal
• Exercise right to appeal
• Seek legal advice promptly

If Dismissed

• Get outcome in writing
• Appeal within deadline
• Note tribunal time limits
• Gather evidence
• Contact ACAS early