Dismissal Following Sickness Absence Investigation

Sickness absence can lead to dismissal, but fair process and medical evidence are essential. The approach differs for long-term absence versus frequent short absences.

Two Types of Sickness Dismissal

Long-Term Sickness

One continuous period of absence:

• Weeks or months off work
• Medical condition preventing work
• Prognosis uncertain
• Capability dismissal
• Focus: can you return?

Frequent Short-Term Absence

Pattern of intermittent absences:

• Multiple separate absences
• "Bradford Factor" scores
• May or may not be related
• Could be capability or conduct
• Focus: pattern and causes

Long-Term Sickness Absence

When Dismissal May Be Considered

Employers typically consider dismissal when:

• Absence lasted months
• No clear return date
• Cover arrangements unsustainable
• Business impact significant
• Medical prognosis poor

No fixed timescale but commonly:

• 6 months: Often starting point for investigation
• 12 months: Many employers' threshold
• 18+ months: Strong case for dismissal if no return prospect

Fair Process Requirements

Must include:

1. Medical evidence - up-to-date reports
2. Consultation - discuss with employee
3. Consider adjustments - phased return, reduced hours
4. Explore alternatives - different role, redeployment
5. Fair decision - based on business needs and medical evidence
6. Right of appeal

Medical Evidence

Employer should:

• Request occupational health assessment
• Obtain GP report (with consent)
• Get prognosis for return
• Understand capabilities and limitations
• Consider reasonable adjustments

Consultation

Must involve:

• Regular contact during absence
• Discussion of medical evidence
• Exploration of return options
• Consideration of your views
• Explanation of business position

When Dismissal May Be Fair

If:

• Lengthy absence with no clear return
• Medical evidence shows cannot return in foreseeable future
• Cover arrangements unsustainable
• Reasonable adjustments explored
• Business needs considered
• Fair process followed

When Dismissal May Be Unfair

If:

• Inadequate medical evidence
• No proper consultation
• Adjustments not considered
• Process rushed
• Disability discrimination
• Return imminent when dismissed

Frequent Short-Term Absence

Triggering Investigation

Employers often investigate when:

• Bradford Factor score high
• Absence rate above threshold
• Pattern emerges
• Business impact significant
• Other staff affected

Initial Steps

Should include:

1. Return to work interviews - after each absence
2. Pattern analysis - look for trends
3. Invite to meeting - discuss absence levels
4. Medical evidence - ask about underlying causes
5. Identify issues - disability, domestic issues, work-related

Underlying Health Conditions

If absences due to disability or chronic condition:

• Disability discrimination protections apply
• Must consider reasonable adjustments
• Cannot dismiss for disability-related absence without justification
• Occupational health referral essential

Conduct vs Capability

Distinguish:

Capability Issue	Conduct Issue
Genuine illness	Malingering
Cannot help absences	Choosing not to attend
Medical evidence supports	Suspicious patterns
Capability procedure	Disciplinary procedure

Fair Process

1. Informal stage - discuss concerns, support available
2. Formal meeting - explain absence levels, seek explanation
3. Occupational health - assess fitness and adjustments
4. First warning - if absences continue without medical reason
5. Final warning - further absences without improvement
6. Dismissal hearing - if pattern continues

Setting Improvement Targets

May include:

• Acceptable absence level over period
• Improvement expected
• Support offered (OH, adjustments)
• Review dates
• Consequences of no improvement

When Dismissal May Be Fair

If:

• Unacceptable absence levels
• Not caused by disability
• No medical justification
• Warnings given
• No improvement
• Impact on business
• Fair process followed

When Dismissal May Be Unfair

If:

• Absences disability-related
• No reasonable adjustments considered
• Inadequate investigation of causes
• No medical evidence obtained
• No warnings given
• Process unfair

Disability Discrimination

Protected Disability

Under Equality Act 2010:

• Physical or mental impairment
• Substantial and long-term effect
• On ability to carry out day-to-day activities

Cannot Dismiss For Disability-Related Absence

Unless:

• Reasonable adjustments made
• Employment no longer viable
• Can justify as proportionate means to legitimate aim

Reasonable Adjustments

Must consider:

Adjustment	Example
Phased return	Gradual increase in hours
Flexible working	Different hours or pattern
Altered duties	Remove problematic tasks
Equipment	Special chair, software, etc.
Additional leave	Disability-related absence disregarded

Knowledge of Disability

Employer must know or reasonably be expected to know:

• You have disability
• Puts you at substantial disadvantage
• Adjustments might help

If not informed, inform them to trigger duty.

Medical Evidence

Obtaining Evidence

Employer may request:

• Occupational health assessment
• GP report (Access to Medical Reports Act)
• Independent medical examination
• Fit notes and medical certificates

Your Consent

Employer needs your consent for:

• GP reports
• Occupational health disclosure
• Medical records

Can refuse but:

• May make decision without evidence
• Could count against you
• Medical evidence usually helps your case

What Medical Evidence Should Show

• Diagnosis and prognosis
• Likely return date
• Capabilities and limitations
• Reasonable adjustments
• Fitness for role
• Impact of continuing employment

Consultation Meetings

Keeping in Touch

Regular contact during absence:

• Shows employer cares
• Keeps you informed
• Maintains relationship
• Gathers information

But must be:

• Reasonable frequency
• Appropriate method
• Considerate of condition
• Not harassing

Attendance at Meetings

Expected to attend meetings about:

• Your absence and prognosis
• Medical evidence
• Return to work planning
• Capability procedures

If Too Unwell to Attend

Employer should:

• Accommodate your condition
• Meeting at home
• Shorter meeting
• Breaks
• Representative present
• Written submissions

Persistent refusal without good reason:

• May proceed in absence
• Tribunal less sympathetic
• Makes decisions without your input

Return to Work

Phased Return

Often appropriate:

• Gradual increase in hours
• Lighter duties initially
• Build up over weeks
• Regular review

Must agree:

• Terms of phased return
• Pay during phased return
• What happens if cannot complete

Reasonable Adjustments

May include:

• Reduced hours
• Home working
• Different duties
• Equipment or support
• Regular breaks

Trial Period

Can agree:

• Period to test return
• If cannot sustain, what happens
• Review meetings
• Support provided

Business Needs

Balancing Act

Tribunal considers:

• Impact of absence on business
• Size and resources of employer
• Availability of cover
• Cost of cover
• Importance of role
• Whether can hold position open

Small Employers

Smaller businesses:

• Less resources
• Harder to cover
• May justify earlier dismissal
• But process must still be fair

Large Employers

Larger organizations:

• More resources
• Easier to cover
• Expected to wait longer
• Support more adjustments

Alternatives to Dismissal

Consider Before Dismissing

• Different role
• Adjusted hours
• Redeployment
• Ill-health retirement
• Early retirement (if applicable)
• Mutually agreed termination

Redeployment

Should consider:

• Other suitable vacancies
• Match to capabilities
• Trial period
• Training if needed

Medical Retirement

If scheme available:

• Ill-health retirement option
• Pension benefits
• May be preferable to dismissal
• Requires medical evidence

If Dismissed

Potential Claims

Depending on circumstances:

• Unfair dismissal (if 2 years' service)
• Disability discrimination (no service needed)
• Failure to make reasonable adjustments
• Discrimination arising from disability
• Wrongful dismissal (if no notice)

Challenging Dismissal

Grounds include:

• Inadequate medical evidence
• No proper consultation
• Failed to consider adjustments
• Process unfair
• Alternative available
• Disability discrimination
• Decision unreasonable

Evidence Needed

Gather:

• Medical reports and fit notes
• Correspondence about absence
• Meeting notes
• Evidence of adjustments requested
• Comparator treatment
• OH reports
• Impact statements

Common Scenarios

Scenario 1: 12 Months Off, No Return Date

Long-term sickness, medical evidence shows no return within 6 months, role needs filling.

• Medical evidence obtained
• Consulted with employee
• Adjustments considered
• Business needs assessed
• Likely fair if process followed

Scenario 2: Frequent Absences, Underlying Disability

Pattern of absences, turns out related to chronic condition (disability).

• Must treat as disability
• Reasonable adjustments essential
• Cannot dismiss for disability-related absence
• Must justify if employment ends
• Likely unfair if adjustments not made

Scenario 3: Stress-Related Absence, Work-Caused

Off sick with stress, caused by workplace issues.

• May be disability
• Employer must address causes
• Cannot dismiss without addressing issues
• Adjustments to work needed
• Likely unfair if causes not addressed

Practical Tips

For Employees

During Absence:

• Keep in touch appropriately
• Provide medical evidence
• Attend meetings if able
• Discuss return plans
• Raise disability if applicable
• Propose adjustments

If Facing Dismissal:

• Get up-to-date medical evidence
• Highlight any disability
• Propose adjustments
• Challenge process failures
• Appeal if dismissed
• Seek legal advice

For Employers

Managing Absence:

• Regular appropriate contact
• Obtain medical evidence early
• Consult meaningfully
• Consider adjustments
• Document everything
• Be patient but realistic

Before Dismissing:

• Up-to-date medical evidence
• Thorough consultation
• All adjustments considered
• Business needs assessed
• Fair process followed
• Legal advice obtained

Summary

Fair Dismissal Requires

• Medical evidence
• Proper consultation
• Consideration of adjustments
• Assessment of business needs
• Fair process throughout
• Reasonable decision

Long-Term Absence

• No fixed time limit
• Must have medical evidence
• Prognosis key factor
• Adjustments explored
• Business needs considered

Frequent Absence

• Investigate causes
• Check for disability
• Fair warnings given
• Improvement targets
• Support provided
• Pattern must be unacceptable

Disability Protection

• Cannot dismiss for disability-related absence without justification
• Reasonable adjustments must be made
• Must show employment no longer viable
• High bar to justify dismissal

Key Points

• Sickness absence can lead to fair dismissal
• Process is crucial
• Medical evidence essential
• Disability discrimination protections strong
• Must balance employee and business needs
• Consultation throughout required

Dismissing for sickness absence is complex. Fair process, medical evidence, and consideration of disability are essential to lawful dismissal.