As an employer, the law says you can sack someone on sick leave but you must have good reason and follow a fair dismissal procedure, or you risk costly employment tribunal claims.
In this guide for HR, managers and employers, we explain the rules on sickness absence dismissals and share best practice advice on how to avoid unfair dismissal claims.
Is sickness absence a fair reason for dismissal?
For a dismissal to be lawful, one of the requirements is that the employer’s reason for terminating employment has to be fair. By law, there are five potentially fair reasons for dismissal:
- Conduct and behaviour
- Capability & performance
- Statutory illegality or breach of a statutory restriction
- Some Other Substantial Reason (SOSR)
Sickness absence would generally constitute either a conduct or capability issue.
For example, absence would be considered a conduct issue if someone is absent from work continuously, if they act dishonestly (pulling ‘sickies’), show poor discipline over long periods of time, steal from the company or misuse drug and alcohol, whereas absences which impact an individual’s ability to perform their job would be a capability issue.
This is an important distinction to establish as it will determine your options and how you manage the situation.
Long term sickness absence
Long-term sickness absence from work due to genuine absence should be treated as a competency issue, not a conduct issue.
If an employee has a long-term or persistent health condition that makes it hard for them to perform their work, they can be terminated fairly on the basis of capability.
Employers are allowed to dismiss employees on long term sick leave or where the employee has a high absence record due to reoccurring health problems.
If an employee’s recurrent absence has a negative impact on the business, it may be reasonable to dismiss them for “some other serious reason.”
However, if the employee’s condition qualifies as a disability, the employer is required to make “reasonable accommodations” to assist them in performing their duties. A disability is defined as a physical or mental impairment that has a significant and long-term negative impact on a person’s capacity to perform daily duties.
A phased return to work, revised duties, changed hours, or workplace adaptations are examples of reasonable adjustments, albeit what is’fair’ will depend on the circumstances. The company will have to consider all options and evaluate any employee requests. They must then decide whether any adjustments are feasible, whether sufficient resources are available to support the adjustments, and whether the adjustment will be helpful in overcoming or reducing the disadvantage.
Frequent, short-term absences
Absence does not have to be long term to be an issue. If someone is frequently off work for short periods, and the absences are preventing them from doing their job properly, this could be considered a disciplinary matter.
Effective absence monitoring is critical to assist employers in identifying patterns, such as an employee frequently calling in sick on Mondays.
Unauthorised sickness absences
If an employee is absent from work for less than seven calendar days, they can self-certify on their return in line with their employer’ absence reporing procedure.
If an employee has been sick for more than 7 days, including holidays and weekends, and has taken sick leave, they have to give their employer a fit note to confirm they have been medically certified as being well enough to resume their duties.
If the employee fails to provide medical evidence of their illness or injury or a procedurally-compliant explanation of their illness or injury, the employer may be allowed to consider the person’s absence from work as unauthorised and a misconduct matter, triggering a disciplinary process.
Malingering, often known as pulling a ‘sickie,’ is when an employee fabricates or exaggerates a sickness or injury to receive time off work.
If an employee is proven to have to faked or exaggerated illness to justify time off work, this would be in breach of the implied duty of trust and confidence between the employer and the employee. As a gross misconduct matter, employers can take disciplinary action against the employee.
An employee may be suspected of malingering in a variety of situations, including failure to give a fit note. Even if an employee can offer a valid fit note, there may be information that raises doubts about whether they’re truly unable for work, such as being seen out socialising.
Sickness absence fair dismissal procedure
Even where the grounds for dismissal can be shown to be fair, the employer must act reasonably and follow a fair dismissal procedure.
While there is no statutory definition of ‘reasonableness’, it is advisable to conduct a thorough and impartial investigation into all facts and circumstances surrounding the conduct or capacity issue, before any decision to dismiss is made.
Under ACAS guidance, a fair disciplinary procedure should include at the very least:
- Conducting a thorough investigation into any allegations of wrongdoing
- Notifying the employee in writing of the problems
- Holding a disciplinary hearing for the employee
- Providing the right to be accompanied to the employee
- Conducting a hearing as quickly as possible
- Notifying the employee in writing of the decision Including a right of appeal for the employee.
The employer should also have a reasonable suspicion of serious misbehaviour or incapacity, based on reasonable reasons. Even in serious cases of gross misconduct where a potential consequence is summary dismissal – such as providing a forged sick note – employers are advised to avoid ‘on the spot’ dismissals and to conduct a full enquiry with a disciplinary hearing to allow the employee the opportunity to defend themselves against any claims made against them or to present any mitigating circumstances.
Procedures for assessing capability
A lawful capacity procedure treats the individual fairly and without discrimination, and typically includes the following steps:
- Before making a capability dismissal judgement, the employer must provide the employee a reasonable amount of time to recuperate from their sickness and complete any course of treatment.
- Conduct a reasonable examination into the employee’s condition, including getting a current medical report to determine the likely prognosis and whether any improvement can be expected in the short to medium term, both with and without treatment.
- If necessary, obtain evidence from an occupational health specialist.
- Provide the employee with the opportunity to review any medical findings, make representations, and submit their own evidence.
- Explore all available possibilities for assisting the employee’s return to work, ideally in consultation with the employee, such as flexible working, workplace adaptation, or finding new work.
- The employer must allow the employee to consider and debate these issues. This could involve waiting until they are well enough to attend a meeting or respond in writing.
Unfair dismissal risks
There must be clear proof of serious wrongdoing to support dismissal for misconduct. A dismissal decision must also fall within the employer’s range of reasonable responses, taking into account any mitigating elements, alternative disciplinary action, and previous decision-making. A claim for unfair dismissal could be filed if a fair procedure was not followed or if the employee acted reasonably in all circumstances.
Similarly, if an employee is summarily dismissed for gross misconduct, i.e., without pay or pay in lieu of notice, the employee may have a claim for wrongful dismissal if they can show, for example, that summary dismissal was a disproportionate response based on the evidence available to the employer, or that the employer failed to follow the correct procedure.
Dismissal due to medical incapacity does raise legal risks. If an employer fails to make reasonable workplace adaptations or acts equitably, they risk claims for both unfair dismissal and unlawful disability discrimination.
Employers may have to explore if reasonable adjustments can be made to support the worker’s return to work, but if this not possible, it may be fair for the employer to terminate employment if they are unable to perform their work. In this case, the employer would need to be able to demonstrate why they were unable to make any adjustments.
A dismissal decision must also fall within a reasonable range of options available to the employer, taking into account factors such as the expected length of the employee’s continued absence, any ongoing treatment, and the extent of business disruption.
Managing absence best practice
Excessive absence has a substantial impact on your business, and should be proactively managed. Employers should consider the following to deal with sickness absence in the workplace while minimising legal risk:
Sickness absence policy
Your sickness absence policy should provide a clear framework for all parts of the organisation to understand entitlements and expectations, procedures relating to absence reporting and recording, and the potential consequences of absence-related issues. Consistency and compliance with the policy will be critical to effective absence management.
Recording and monitoring absences is necessary to identify issues and patterns. Ensure you are capturing useful data, including duration and reasons for absence. Your sick leave policy should provide thresholds, or trigger points, for unacceptably high levels of short and frequent sick leave. It should also specify what steps will be followed if the absence management process is triggered.
Back to work interviews
By interviewing an employee upon their return to work, you will be able to determine any underlying reasons for frequent absences and, if necessary, address any reasonable accommodations for disability-related absences. Following up on absences in a proactive manner can also signal to your staff that their sick leave is being monitored, that certain trends are being identified, and that disciplinary action for bogus sick leave may be taken against them.
Implementing and following fair procedures for dealing with conduct and capability issues emerging from sickness absence can help to reduce absence rates and the risk of complaints of unfairness. These procedures can be used to deliver written warnings to employees, as well as targets for improving attendance levels and timeframes for achieving them. It will also assist you in demonstrating that you acted fairly, even if you have no choice but to dismiss someone who is absent due to illness.
Can I dismiss an employee who is off sick with stress?
An employee can dismissed for stress-related sickness absence on grounds of capability and health, but only where they’re no longer capable of doing their job and all reasonable adjustments have been made to support their return to work.
How long can an employee be on sick leave before dismissal?
The point at which it may be reasonable to dismiss someone on long-term sick leave will depend on the circumstances, including the likely length of their continuing absence, any ongoing treatment and the level of disruption to the business.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.