Can an employee be dismissed for being off sick?

At 121 HR Solutions we are asked this question frequently and the situation can vary. Firstly, it is important to highlight that in legislation there are five potentially fair reasons for dismissal, including conduct, capability, redundancy, illegality, and some other substantial reason.

When deciding to dismiss an employee, employers must be confident that there is a justifiable reason for the dismissal and must also ensure that the decision to dismiss is reasonable in all the circumstances. Employers must follow a fair procedure, especially if the employee has worked for 2 or more years, as this service will entitle them to raise a claim at the employment tribunal for unfair dismissal if they feel unfairly treated. 

If an employee is found to have been absent from work with no justifiable reason this could amount to misconduct.  Equally, even in the case of legitimate sick leave, either short or long-term, the employee may be fairly dismissed on grounds of capability if they are no longer able to perform their job or are unable to achieve the required level of attendance.

However, to justify a decision to dismiss an employee for too many sick days, the employer would not only need to follow a full and fair procedure – providing a series of formal warnings; but would also have to demonstrate that the dismissal was reasonable in the circumstances.

If the employee is suffering from a long-term physical or mental impairment amounting to a ‘disability’ within the Equality Act 2010, then dismissing them could amount to an automatically unfair dismissal and disability discrimination, for which there is no qualifying service requirement.

Employers are also under a statutory duty to make reasonable adjustments to support an employee’s return to work, or to help prevent recurring absences for employees with a disability. This could include a phased return, amended duties, altered hours or workplace adaptations. It may also be advisable to record disability-related absence separately from other sickness absences. Any failure to take these or any other steps to remove any disadvantage suffered by an employee by reason of their disability could again amount to unlawful discrimination.

In short, the employer must consider every step that can reasonably be taken to support the employee in the workplace, ideally in consultation with the employee and external health professionals, before taking a decision to dismiss.  If you would like more information or have any concerns about the subject, contact us at enquiries@121hrsolutions.co.uk and we can discuss.

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