Sickness Absence and dismissal

There are rules about whether you can be dismissed because of illness.

Long-term sickness absence and unfair dismissal

The UK government website makes clear that your employer may dismiss you if 'you have a persistent or long-term illness that makes it impossible for you to do your job' (GOV.UK: Dismissal: your rights). Before doing so, however, your employer should:

  • Look for ways to support you – for example, considering whether the job itself is making you sick and needs changing.
  • Give you reasonable time to recover from your illness.

If you have a disability, which may include long-term illness, your employer has a legal duty to support you in the workplace by making reasonable adjustments.

To claim unfair dismissal if your employer has taken you through its capability procedure, you need to have been continuously employed for at least the two year 'qualifying period'. There is no qualifying period to make a claim for disability discrimination.

Citizen's Advice has listed the factors a tribunal will examine before deciding on your claim (Citizens Advice: Employment tribunals – legal tests for unfair dismissal claims – long term sickness):

  • Whether your employer carried out a reasonable investigation about your condition.
  • How likely it is that you could return to work.
  • Whether your employer made reasonable efforts to explore other options such as flexible working, adapting the workplace for your disability or finding other work for you.

The tribunal will also look at the general legal tests that apply to unfair dismissal claims, such as whether your employer correctly followed their disciplinary and dismissal process.

In terms of your employer conducting a reasonable investigation of your condition, Citizen's Advice says a tribunal will look at whether:

  • You were made fully aware of the seriousness of the situation – namely, that you might be dismissed.
  • Your employer gave you copies of any medical evidence, and allowed you to respond to both it and your employer's views.
  • You disagreed with this evidence and, if you did, whether you provided your own, and whether your employer took this into account.

A tribunal will also ask whether your employer assessed the chances of you returning to work before you were dismissed.

It is important to have medical evidence to support your claim. However, if that evidence suggests it was unlikely that you could return to work at all, or that you would be absent for a long time, it will be easier for your employer to justify dismissing you.

In terms of your employer making reasonable efforts to help you get back to work, a tribunal will ask whether they:

  • Attempted to find you some work, such as light duties, part-time work or another job.
  • Made adjustments to the workplace, to help you do your job if you have a disability.

If your employer did not do this, and you think they could have, you should try to demonstrate to the tribunal how this could have helped your return to work.

Despite that, your employer has to make only a 'reasonable' effort. A tribunal will also examine the size of your employer, how easily they could make the changes, and whether there would be any additional costs, such as training.

You should also consider, in deciding whether to make a claim, whether a tribunal would regard your dismissal as being the response of a 'reasonable' employer. A tribunal would consider factors such as how long you have worked for your employer, or what effect your absence has on the business and your colleagues. Your employer should also have looked at how they could have covered your work while you were absent.

Your employer must have followed their procedures fairly before dismissing you for long-term sickness absence. Law at Work says (Law at Work 2020, p 303) that dismissing an employee on long-term sick leave without consulting them, or warning them that more time off sick is likely to result in dismissal, will 'almost certainly' be unfair.

Dismissal for frequent, short-term absences

Your employer may dismiss you for 'unsatisfactory attendance' – persistent, short-term sickness absences. This can be a fair reason for dismissal if an employer is found to have acted reasonably. You must have worked for your employer for at least two years to make a claim of unfair dismissal.

If your dismissal was due to 'skill, aptitude, health or any other physical or mental quality', the reason is capability. This is not always the case for short-term sickness absence, though. Thompsons Solicitors, which works with the NUJ, says that if your employer holds that your absences 'amounted to a failure to meet attendance targets or a failure to comply with an attendance procedure', your dismissal is therefore for 'some other substantial reason' (Thompsons Solicitors: Dealing with short-term sickness absence) (set out in the Employment Rights Act, 1996).

Law at Work stresses that employers should consider the wider context, including non-work matters such as domestic abuse or bereavement, when looking at short-term sickness absence (Law at Work 2020, p 309). They should also let you tell your side of the story.

Thompsons says case law has established that employers will not be deemed to have acted reasonably unless they have:

  • Carried out a fair review of your attendance record, and the reasons for your absence.

  • Given you an opportunity to make representations.

  • Warned you that you may be dismissed if your attendance record does not improve.

Thompsons advises anyone experiencing persistent, short-term sickness absences to make sure they have evidence of any underlying causes of the absences, particularly if they are work-related. That may help put the responsibility back on the employer to consider alternatives to dismissal.

Dismissal for sickness absence during pregnancy

You must not be treated unfavourably because of any illness relating to your pregnancy. If you are not well during pregnancy, you should follow your employer's normal sickness absence procedures.

Your employer must record any pregnancy-related sickness absence separately from other sick leave, so that it does not count in the total and is not used to your disadvantage ̶ to dismiss you, for example (Sickness during pregnancy and maternity leave, and on return to work).

It is classed as automatic unfair dismissal and pregnancy discrimination if you are dismissed for a reason connected to your pregnancy. This protection applies from the first day of your employment. It does not matter how many hours you work.

The charity, Maternity Action, has a comprehensive guide to sickness absence during pregnancy .

If you are dismissed after you return to work, the dismissal will be considered automatically unfair if the reason behind it relates to your pregnancy, or to you using your maternity rights (Law at Work 2020, p 309).

Finally, you are protected against sex, pregnancy and maternity discrimination (see Pregnancy or Maternity in the Discrimination and Equality, including Protected Characteristics section).

If you decide to make a claim, the charity, Pregnant then Screwed, can pair you with a mentor who has already been through the tribunal process. The organisation says 'this friendship and guidance gives women the strength they need to persist with a tribunal and withstand the process whilst offering knowledgeable advice on the practical, emotional, financial and legal aspects'. The programme is free but depends on the availability of a mentor.

You can apply at Mentors to help with legal proceedings .

Dismissal for sickness absence during pregnancy during the Coronavirus pandemic

The Covid-19 pandemic has prompted particular concerns for pregnant women. The UK government has issued advice that all pregnant women are 'clinically vulnerable' to Covid-19 and should ensure they stick to social distancing guidelines. Pregnant women are also advised to work from home and avoid using public transport if possible, and to have only limited face-to-face contact.

In these circumstances, dismissing a pregnant woman for not coming in to work for reasons related to Coronavirus may be automatically unfair, and/or pregnancy discrimination (Law at Work 2020, p 310).

The employer also risks breaching their health and safety duty. Organisations such as Maternity Action and Pregnant then Screwed have extensive advice about issues relating to Covid-19.

Sickness absence and redundancy selection

Your employer is entitled to use your history of sickness absence as a criterion when selecting for redundancy. This could discriminate against disabled workers, and women, who are more likely to take time off for caring responsibilities. The Equalities and Human Rights Commission advises employers to use a number of criteria so that attendance is not the decisive factor (Law at Work 2020, p 311).

Employers must disregard any pregnancy-related sickness absence in any redundancy process. Failing to do so would be pregnancy discrimination. Law at Work believes this is likely to include time spent by pregnant women who are shielding at home, but cannot work from there, on official advice during the pandemic.