Dismissal for excessive sickness absence

Hello! I am Gemma, a legal assistant here at Lawyer Destroyer. I am so sorry to hear you are having a stressful time with work and your health.

To answer your question directly: yes, an employer can legally dismiss someone for having too many sickness absences. However, they cannot do this out of the blue. The law requires them to follow a careful and fair process first.

Here is how it all works in England and Wales.

The legal position:

In employment law, dismissing someone because of poor attendance or ill health falls under something called capability. It means the employer is arguing that your health prevents you from doing your job reliably.

How much protection you have depends heavily on how long you have worked there and whether your illness counts as a disability.

If you have worked for your employer for less than two years, they can unfortunately dismiss you much more easily. This is because you need two years of continuous service to claim ordinary unfair dismissal. However, they still cannot dismiss you if the reason is discriminatory.

If you have worked there for two years or more, you have unfair dismissal rights. Your employer must prove they have a valid reason to let you go and that they followed a fair and reasonable procedure.

The Equality Act 2010 provides strong protection if your illness is classed as a disability. A disability legally means you have a physical or mental impairment that has a substantial and long-term negative effect on your ability to do normal daily activities. If your condition fits this description, your employer has a legal duty to make reasonable adjustments to help you do your job, and they cannot dismiss you simply because of your disability unless they can strictly justify it.

The process your employer should follow:

Whether your absences are frequent short bursts or one long period of sick leave, your employer should not jump straight to dismissal.

They need to monitor your absence and hold meetings with you to discuss it.

They should ask for your permission to get up-to-date medical evidence. This usually means a report from your GP or referring you to an Occupational Health specialist to understand your condition and when you might get better.

They must warn you if your job is at risk. For frequent short-term absences, they should usually give you formal warnings and a clear timeframe to improve your attendance.

They must consider alternatives to dismissal. This includes thinking about whether there is a different role you could do, or if reasonable adjustments could get you back to work.

Practical next steps:

1. Check your staff handbook and employment contract. Look for the sickness absence policy or capability procedure. This will tell you exactly what triggers a formal meeting and what steps your employer has promised to follow.

2. Keep communication open and friendly. Stay in touch with your manager or HR department. Keep giving them your fit notes and let them know what your doctor is advising.

3. Ask for reasonable adjustments in writing. If there is something that would help you attend work more reliably, suggest it. This could be a phased return from long-term sickness, flexible hours, working from home, or modified duties.

4. Cooperate with Occupational Health. If your employer wants to send you to an occupational health doctor, it is usually a good idea to go. Their report can provide the independent medical backing you need to secure adjustments.

5. Take a companion to formal meetings. If your employer invites you to a formal absence review or capability meeting, you have a legal right to bring a trade union representative or a work colleague with you for support.

6. Consider early dispute resolution. If you feel you are being pushed out unfairly or discriminated against, you can raise a formal written grievance with your employer. If that does not work, you can contact ACAS. ACAS is the independent public body that deals with employment disputes and offers an early conciliation service to help resolve issues before an employment tribunal.

Missing facts that might change things:

To give you a completely precise picture, it would be helpful to know exactly how long you have worked for this employer, what your specific medical condition is, and whether your employer has started any formal absence management or disciplinary procedures with you yet.

Please take care of yourself, and let me know if you would like me to explain any of these steps in more detail.