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If your employer wants to dismiss you because of long term sickness

This advice applies to England

If you’ve had a lot of time off work because of sickness, it might be reasonable for your employer to dismiss you because you’re no longer able to do your job.

If you’ve been working for your employer for 2 years or more, they have to follow the correct disciplinary process before they dismiss you. 

Your long term sickness might count as a disability according to the law. If it does, you might be able to argue you were discriminated against. It doesn’t matter how long you’ve worked for your employer if you want to claim discrimination.You should check if you’re disabled under the Equality Act.

Check if your employer carried out a reasonable investigation of your condition

Your employer should:

  • warn you  that they might dismiss you 

  • show you copies of any medical evidence

  • give you a chance to respond to any medical evidence and their assessment of the situation

Your employer should also look into your medical condition to try to work out if and when you’ll be able to work again before they dismiss you. They should:

  • check how long you were off work and if they have an accurate record of your sick leave

  • get information about your medical condition

  • check what any medical evidence says about your condition, including your ability to do alternative work or when you might return to work

  • check if you’re due to have any further treatment that might improve your chance of returning to work

It’s more likely to be reasonable for your employer to justify dismissing you if you’ll be absent for a long time or won’t be able to go back to work at all.

If you were too ill to attend a disciplinary meeting

Your employer should ask you to go to a disciplinary meeting before they dismiss you. If you’re too ill to go, your employer should think about:

  • postponing the meeting

  • holding the meeting somewhere more convenient for you

  • agreeing you could supply written evidence

Check if your employer is making reasonable efforts to help you return to work

Your employer should try to make it easier for you to return to work. This could include:

  • finding you other work, such as light duties, part-time work or another job

  • making adjustments to the workplace to help you do your job if you have a disability

It might be reasonable for your employer to dismiss you if they can show they did these things and discussed them with you but you didn't take up the offer of other work.

If your employer doesn't offer to do these things and you think it would have been possible, you should try to show  that this would have made a difference to you returning to work.

An employer only has to make a reasonable effort. What is reasonable will depend on:

  • the size of your employer - a big company will be expected to do more than a small one

  • how easy it would be to make the changes

  • how expensive it would be to make the changes - this includes costs like extra training

If your employer refused to make reasonable adjustments to help you return to work, you might also be able to make a claim for discrimination.

Check if your dismissal was reasonable

If you make a claim for unfair dismissal, a tribunal will decide if a reasonable employer might have dismissed you. The tribunal will look at the following things to decide if it was reasonable to dismiss you.

How long you've worked for your employer

It could be reasonable for your employer to let you have  a year's sick leave if you've worked there for 10 years, but this might be less reasonable if you've only been there for 2 years.

How your absence affects the business and other staff

Your employer should look at how they could cover your work while you’re absent. For example, they could:

  • ask other staff to do your work or work overtime

  • hire a temp or use agency staff

How important it is for your employer to have a permanent employee

Depending on your work, it might be harder for your employer to manage without you. For example, if you do skilled work, it could be difficult for them to find suitable cover. If you're one of several people doing a similar semi-skilled or unskilled job, it might be easier to find other people to cover.

Your chances of recovery

It might not be reasonable to dismiss you if you’re likely to get better soon, even if you need further treatment. 

Size of your employer

A large employer might have been able to cope better with your absence than a smaller one. Or they might have been more able to find you suitable alternative work.

Whether it’s your employer’s fault that you’re off sick

It might still be reasonable for your employer to dismiss you if you're unlikely to be fit enough to return to work and they can't offer you suitable alternative employment. Your employer will be expected to do everything they reasonably can to help you.

You might also be able to claim compensation for your personal injury, but you’ll have to do this separately from your employment tribunal claim.

If you want to make an unfair dismissal claim

You can check how to challenge your dismissal

 

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