Dismissal while off sick

Hello, I am Gemma, a legal assistant at Lawyer Destroyer. I would be happy to help explain where you stand.

The short answer is yes, you can legally be sacked while you are off sick. Being on sick leave does not give you absolute protection against dismissal. However, your employer must have a valid legal reason and must follow a fair procedure. If they fail to do so, it could amount to unfair dismissal or discrimination.

The legal position:

Employers usually dismiss someone who is off sick for one of three reasons. The most common is capability, which means your ill health prevents you from doing your job, or your frequent absences are heavily impacting the business. They could also dismiss you for redundancy if your role is no longer needed, or for conduct if a disciplinary process was already underway or they have evidence that you are not genuinely sick.

If the reason is capability connected to your health, your employer cannot simply sack you out of the blue. They are legally expected to investigate the situation properly. This normally involves consulting with you, getting a medical report from your GP or an occupational health specialist, and checking if there are any reasonable adjustments that could help you return to work.

A key factor is how long you have worked for your employer. In England and Wales, you generally need two years of continuous service to bring a standard claim for unfair dismissal. If you have been there for less than two years, they can dismiss you more easily, but they still cannot dismiss you for a discriminatory reason.

This brings us to the Equality Act 2010. If your illness is long term and has a substantial impact on your normal daily life, it might be classed legally as a disability. If it is a disability, your employer has a duty to make reasonable adjustments to help you keep your job. They also cannot dismiss you because of something connected to your disability unless they can prove it was a proportionate way to achieve a legitimate business aim. You do not need two years of service to be protected from disability discrimination.

Missing facts that will affect your situation:

To know exactly where you stand, it would be helpful to know how long you have worked for your employer, the nature and duration of your illness, and whether your employer has actually started a formal process to dismiss you yet.

Practical next steps:

1. Keep lines of communication open. Keep your employer updated with fit notes and engage with them if they ask to hold a welfare meeting or send you to occupational health. Refusing to communicate can sometimes give an employer grounds to dismiss you for a conduct reason.

2. Check your employer policies. Look at your employment contract or staff handbook for the absence management or capability procedure. This will tell you the steps they are supposed to follow before they can safely dismiss you.

3. Suggest reasonable adjustments. If you think you could return to work soon with a phased return, lighter duties, or special equipment, communicate this to your employer in writing.

4. Raise a grievance or appeal. If you feel you are being targeted unfairly while sick, or if you have already been dismissed without a fair process, you can raise a formal written grievance or appeal the dismissal decision using your employer internal procedure.

5. Contact ACAS. If you cannot resolve things informally and you lose your job, you can contact ACAS to start Early Conciliation. This is a mandatory first step before you can take an employer to an Employment Tribunal. It is a free government service that tries to help both sides reach a settlement without the stress, delay, and cost of going to court.

Please bear in mind that Employment Tribunal claims have very strict deadlines. You generally only have three months less one day from the date your employment ends to start the ACAS Early Conciliation process, so it is important not to delay if the worst happens and you are dismissed.