Dismissal during sick leave

Hello there. I am Gemma, your legal assistant here at Lawyer Destroyer. I am very sorry to hear that you are off sick. Being unwell is stressful enough without having to worry about your job, so I am happy to explain where you stand.

The short answer:

Yes, an employer can legally dismiss you while you are signed off sick with a fit note. Having a fit note does not offer absolute protection against losing your job. However, your employer cannot simply fire you out of the blue just because you are unwell. The law says they must handle the situation fairly, reasonably, and carefully. Exactly what protection you have depends heavily on how long you have worked there and the nature of your illness.

Your length of service:

If you have worked for your employer for less than two years, it is generally easier for them to let you go. This is because you need two years of continuous service to bring a standard claim for unfair dismissal. However, they still cannot dismiss you if your illness qualifies as a disability, as that would be discriminatory. If you have been there for two years or more, your employer must have a legally valid reason to dismiss you and must follow a strict, fair procedure to do so.

Sickness and disability:

You have strong legal protection under the Equality Act 2010 if your health condition counts as a disability. In employment law, an illness is usually considered a disability if it has a substantial and long-term negative effect on your ability to do normal daily activities. Long-term generally means it has lasted, or is expected to last, for 12 months or more. If you are disabled, your employer has a legal duty to make reasonable adjustments to help you get back to work. If they dismiss you without trying to make these adjustments, it could be disability discrimination. You are protected against discrimination from your very first day of work.

The capability process:

If your employer is thinking about dismissing you because your health means you cannot do your job, this is known as a capability dismissal. Before taking this step, a fair employer should not rush. They should consult with you regularly about your health and your expected return date. They should also seek up-to-date medical evidence, usually by asking you to speak to an occupational health specialist or by writing to your GP. Finally, they should look at all other options before dismissal, such as a phased return to work, lighter duties, or moving you to a different role.

Practical next steps:

1. Look at your staff handbook. Find your employer's sickness absence policy. This document will tell you exactly what process your employer has promised to follow.

2. Keep communication open and in writing. Keep in polite contact with your employer. If you have phone calls, it is a good idea to send a brief email afterwards covering what was discussed, just so you have a paper trail.

3. Save your documents. Make sure you keep copies of all your fit notes, hospital letters, and any correspondence from your employer.

4. Cooperate with occupational health. If your employer asks you to attend an occupational health assessment, it is usually sensible to go. It is much better for your employer to make decisions based on real medical advice rather than guessing when you might recover.

5. Contact Acas or a trade union. If you feel your employer is pushing you out unfairly, or if they invite you to a formal meeting where dismissal is a possibility, you can contact your trade union for support. You can also speak to Acas, the free and independent employment body in England and Wales, for practical guidance on resolving the dispute.