Can I sack someone who is off sick?

Written by Kevin Murphy
11 February, 2022

Can I sack someone who is off sick?

The simple answer is, yes, but please be careful! 

Dismissing employees who are off sick is a tricky maze to navigate, with many potential headaches.  However, it is definitely possible to sack an employee who is off sick.  Employers must ensure that the reason for the dismissal is either: 

  • medical capability; or
  • a legitimate reason not connected to the absence.

Watch our case study video below, explaining this process.

Medical Capability

Where an employee is off work with continuous, long-term illness or repeating absences it could be possible to terminate employment on the grounds of medical capability.  There is no set process for dismissing an employee due to sickness but employers must ensure that they act fairly and reasonably in the circumstance.  Employers must also be able to demonstrate that there is no reasonably foreseeable return to work or no adjustments you can make to facilitate a return.   In doing so employers stand more chance of defending a claim of discrimination.

 

As defined by the Equality Act 2010, a person is disabled if they have a physical or mental impairment that has a substantial and long-term negative effect on their ability to do normal daily activities. 

pregnant lady

Crucially, this does not just mean continuous long-term illnesses, but also repeating instances of sickness over a long period of time. If you are unsure, contact Employment Law Solutions, and we can help you determine if an employee could be disabled.

In assessing whether someone is disabled you should start with a welfare meeting to understand the illness and assess whether it could be a disability.   You may need to gather medical evidence following a welfare meeting to which employees must provide written consent.

Next, establish the impact of the sickness on the business. Does the sickness cause staffing issues, reduced productivity, or incur additional costs to the business? 

 Assess whether there is any scope of a return to work, there is an expectation on a business to make reasonable adjustments, the adjustments will of course vary depending upon the nature of your business and the illness.  Only where there is no reasonably foreseeable return to work, or if there are no adjustments that can be made should you consider progressing to the final stages. 

 Finally, invite to and hold a formal medical capability hearing with the employee. Check if anything has changed in their circumstances since the last welfare meeting and if they understand the impact that their continued absence has on the business. Further, explore any potential reasonable adjustments or if anything is happening that might enable a return to work in the future, such as dates of surgery.

 If it has been clearly established that there is no foreseeable return to work, that the absence has a significant impact on the business, and there are no reasonable adjustments that could be made to facilitate a return to work, dismissal might be the best course of action for your business.

 You must ensure that your dismissal is well-drafted, thorough, and clear. To ensure your invitation meets the required standards, our lawyers will happily talk to you to ensure that your allegations are properly framed and the correct evidence is included.

Employment Law Solutions can help

If you have a question you would like answered, our lawyers are here to help. Email us your question and we’ll love to get back to you. 

The importance of a well drafted, clear and concise dismissal letter cannot be understated.

Employment Law Solutions offer Employment Law advice and can assist with your dismissals. By offering a monthly retainer service you are able to benefit from legal advice covering all aspects of employment and your business and employment contract reviews 24/7, 365 days, all while spreading the cost over 12 monthly payments.

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