Dismissal during sick leave - what now?

Dismissal during sick leave - what now?


For many UK workers experiencing long term sick leave, it is a significant concern whether or not they are at risk of losing their jobs. 

It is legal to dismiss workers during sick leave. However, it requires a specific set of circumstances and should always be after a series of discussions with the worker, before an employer moves forward to capability dismissal.

In this section, you can read more about the employers’ rights to dismiss because of a worker’s sick leave and what legislation applies. 

Can your employer fire you because of your sick leave?

As a worker in the UK, you can have sick leave for unlimited time. However, an employer can still dismiss a worker that is undergoing long term sick leave. This goes whether you are working in the private or public sector. A worker can fall victim to capability dismissal during sick leave, but it requires objective reasoning from the employer. 

Objective reasoning could be that a worker takes sick leave frequently for prolonged or unspecified periods due to various health concerns, the employer can investigate the sick leave reasons as part of understanding the severity of sickness. Even if workers are ill, they should cooperate with their employer in this investigation, even if it can result in a disciplinary or capability procedure.

If a worker is frequently absent from work due to health reasons, an employer must consider alternatives before investigating reasons to dismiss you. This could be through changes in your tasks, flexible working hours, etc. An employer must allow workers a reasonable timeframe to recover from any possible health conditions before being asked to resume work. This period depends on several reasons: 

  • The period it takes for sickness or injury to recover.
  • The specific injury time (here, physical injuries are more straightforward than e.g., mental illness).
  • If an employer keeps the position open and a replacement takes over the tasks on a temporary basis.

Can you receive a written warning when on sick leave

When a worker presents a fit note as proof of sickness, an employer should always accept it. The only thing that can contradict a sick note is clear and unmistakable evidence that the illness is not genuine. If a worker pretends to be sick, it can – and most likely will – have disciplinary consequences.

Even if your reason for sick leave is completely valid, you may still receive a formal, written warning due to a high sickness absence rate. If the sick leave continues to take place, you are subject to capability dismissal. This is due to employment tribunals dictating that employers need consistent attendance in their workforce for their business to operate efficiently. However, before a discharge, an employer should always: 

  • Ensure that they keep a proper attendance protocol. 
  • Receive a medical report from a health professional to understand sick leave reasons. 
  • Take entire employment history into consideration, discuss sick leave reasons, and help the worker get back to work. 
  • Evaluate how the sickness absence impacts the workforce and the businesses function to work efficiently. 

For a worker to claim unfair dismissal, they must have done two full years’ service. Always bring a trade union representative to any formal meetings regarding poor attendance warnings. For this meeting, a worker needs details of their total absence in due time to read through to compare with their records.