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Can I be dismissed on grounds of ill health?

Can I be dismissed on grounds of ill health?

Being ill is bad enough. It’s even worse if you lose your job because of it. But is it legal for your employer to dismiss you on the grounds of ill health? This article explains when they can, when they can’t, and what you can do about it.

Ill health and the legal position

Long-term illness often results in long-term absence. Obviously, this can be a problem for employers as someone has to cover for you while you’re off sick in order to get the work done somehow.

A point may arise when your employer decides they can’t do this any more, and they decide to dismiss you so they can replace you with someone who can attend more regularly.

In law, any dismissal has to be fair and reasonable. Also, your employer must follow the proper procedure. If any of that doesn’t apply, you can make a claim for unfair dismissal.

We can help you at every stage of an unfair dismissal claim, since we’re employment lawyers who specialise in this area, and who only ever act on the side of employees.

These are the five reasons for dismissal that are considered ‘fair’ in law:

Capability: If you are not capable of doing your job (there’s more on that below)
Illegality: If you can’t continue to do your job because it would be illegal (for example, you’re a driver who’s lost your driving licence)
Misconduct: If you have behaved badly at work, such as theft
Redundancy: If your job is no longer available because of changes at your employer
Any other substantial reason

The most likely reason for dismissal relating to ill-health is the first one, so let’s look at it in more detail.

Dismissal due to capability

Are you still capable of doing the job you were employed to do?

If not, it might be because you lack the skill or aptitude, and training might be the solution for that. Or it might be that your physical or mental health has affected you in such a way that you can’t perform to the standard that your employer requires.

If your employer thinks you’ve been underperforming, they must first give you opportunities to improve.

They should also make reasonable adjustments that might help you, such as offering flexible hours, remote working or changing your job role.

If they go on to dismiss you, it must be because you were unable to reach the standard they expect, and not because you’ve been unwell or off sick.

They will have to provide evidence to support their rationale.

What evidence will your employer need?

Before they dismiss you, your employer should consult with you (and perhaps also the medical professionals who are treating you) to establish:

The nature of your illness
If and when you might return to work
The chance of the illness recurring

They might ask your permission to contact your GP to get a report on your condition and their recommendations about your ability to work.

If you’re off for a long while, they might also ask you to provide ‘fit notes’.

Also, they might bring in an occupational health specialist to confirm your illness, assess how it affects your job, and ascertain if / when you might be ready to return to work.

The company’s decision will also be based on:

The company’s sickness policy
The size of the organisation
How easy it is to provide temporary cover for you
The administrative costs of keeping you on the books
How long you’ve been off sick
The impact of your absence on the business
What effect your absence has on your colleagues
How long you’ve worked there
Your chances of getting work elsewhere

These are also the aspects the Employment Tribunal will consider when deciding whether your dismissal was fair or unfair.

Does your illness count as a disability?

Under the Equality Act 2010, the definition of disability has four elements:

A physical or mental impairment
The impairment must have ‘substantial’ adverse effects
The substantial effects must be long-term (lasting or predicted to last one year or more would count as long-term)
The long-term substantial effects must have an adverse effect on normal day-to-day activities

Your employer has a legal duty to support disabled staff in the workplace.

If they fail to make reasonable adjustments for you, it could count as discrimination, and you could make a claim against them and win compensation or even get your job back.

Adjustments that would be considered reasonable might include changing:

A provision, criterion or practice. This goes beyond what’s written in your employment contract or staff contract and includes all the rules, conditions, arrangements and practices that exist in your workplace. For example, working hours, disciplinary processes and work allocation practices
A physical feature of the building, such as an access ramp
Auxiliary aids, where these would place you at a substantial disadvantage

Unless your employer can show that the treatment you received is a proportionate means of achieving a legitimate business aim, you could also make a claim if you have suffered discrimination ‘arising from your disability’. For example, if you have been treated unfavourably because of absence due to sickness or something else arising in consequence of your disability.

Disability discrimination

There are two main types of disability discrimination – direct and indirect.

To win a direct discrimination claim, you will have to prove that you’ve been treated less favourably (because of your disability) than a real or hypothetical person whose abilities are similar to yours. This person (the comparator) may be non-disabled or have a different disability to you. Your employer will have to prove that the treatment you received was not because of your disability.

To win an indirect discrimination claim, you’ll have to prove that your employer applied a provision, criterion or practice to you – and others who don’t have your disability – in a way that puts you at a particular disadvantage compared with the rest. Your employer will have to prove this was their only means of achieving a legitimate aim.

We can help you at every stage of a discrimination claim. As expert employment lawyers, we specialise in this area, and we only ever act on the side of employees.

What if you’re dismissed due to ill health during your probationary period?

If you’re off sick during the initial three to six months of a new job, your employer might extend the probationary period to give you more time.

If they have the right to do this, they must tell you about it, and that they are making use of that right.

Dismissal procedure

Your employer must follow a full and fair dismissal procedure, otherwise it will count as unfair dismissal. In England, Scotland and Wales, the procedure is based on the Acas statutory Code of Practice on discipline and grievance procedures, and the Tribunal will take it into account when deciding your case. In Northern Ireland, the LRA is the equivalent to Acas.

The Code works both ways. If the tribunal feels that your employer unreasonably failed to follow the guidance, they can increase the amount you are awarded by up to 25%. On the other hand, if they feel you (the employee) have unreasonably failed to follow the guidance, they can reduce your award by up to 25%.

When it comes to disciplinary procedures, both employees and employers should…

Raise issues promptly
Don’t delay meetings, decisions and communications without a good reason
Act consistently

Employers should…

Carry out any necessary investigations to establish the facts of the case
Tell you the basis of the problem and give you an opportunity to put their case in response before they make a decision
Allow you to be accompanied at any formal disciplinary meeting
Allow you to appeal against any formal decision

Here’s a quick summary of the recommended steps:

Attempt to resolve the situation informally between you and your employer
Follow the discipline and grievance procedure set out in your contract or handbook
Go through the verbal and written warning process
Try using a third-party mediator (internally or externally)
Consult an employment lawyer
Take your case to the Tribunal

What this means to you

Always keep a written record of who said what and when, as this will help build your case.

If you think your dismissal was unfair, you must make a claim within three months less one day. That means you should talk to us early on – we’ll be happy to help. The first step is an initial conversation at no charge and with no obligation.

Need help?

For a FREE assessment of your case, call 0808 168 7288 or complete a Free Online Enquiry.

We have already helped thousands of people to win millions of pounds in compensation.

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May 19, 2022 at 6:08 pm
Category: Blog, Unfair Dismissal

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