How long can you be on sick leave before dismissal

How long can you be on sick leave before dismissal?

Wondering how long you can be off sick before your employer has the right to dismiss you?

Here’s the short answer… Sick leave counts as ‘long-term’ after four weeks. There is no maximum period of sickness absence, but your employer should allow a “reasonable” length of time for you to recover.

Here’s the long answer…

• Have you repeatedly been off work due to illness or injury?
• Do you have a medical condition that makes it impossible for you to do your job?

If you’re frequently off sick, or ill-health means you’re off work for a long time, this gives your employer a problem. They may eventually reach a point where they feel they have to end your contract of employment and dismiss you so they can hire someone else.

It’s bad enough being ill without losing your job too! So what does the law say about your rights in this situation?

Being dismissed due to being off sick

Length of service matters in the case of sick leave. Have you worked there for two years? If yes, you are protected against being dismissed unfairly.

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To be fair in law, a dismissal must be due to one of these five reasons:

• Conduct – you’ve something unacceptable or inappropriate, such as having poor discipline, misusing drugs or alcohol, stealing from the business, or acts of dishonesty
• Capability – when you are unable to perform your role effectively
• Redundancy – when business no longer requires anyone in your role
• Legal reasons – for example, you’re a taxi driver who’s lost your license
• Another “substantial” reason

If the dismissal is due to long-term sick leave, your employer might give the reason of capability, because you can no longer physically do your job.

They will need to prove that dismissal was reasonable in the circumstances. In addition, they must follow a fair process when dismissing you.

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Dismissal: Following a fair process

Before it reaches the dismissal stage, your employer should:

• Contact you after 28 days off to agree the method and frequency of contact. This is a Stage 1 long-term sickness meeting
• With your consent, refer you to their Occupational Health department or Fit for Work service
• Obtain a medical report from your GP or Occupational Health to find out the chances of you returning to work in the near future
• Arrange a meeting with you to discuss the medical report
• Ensure your medical information is kept confidential and stored securely
• Tell you about your entitlement to Statutory Sick Pay
• Explain how your long-term sickness absence affects any untaken holiday (you continue to accrue annual leave while off sick, and it can be carried over to the next holiday year)
• If you remain on long-term sick leave, they should go on to hold Stage 2 meetings every 3 months, with a Stage 3 final formal review meeting after 12 months
  
• Find out whether it’s the job that’s making you ill
• Make reasonable adjustments (if possible) to enable you to return to work, such as a phased return, or a temporary placement, or permanent redeployment, or providing you with support, or changing your working conditions, or changing your duties, or altering your shifts, or shortening your hours, or enabling you to work remotely – they should discuss the arrangements with you, your line manager, and Occupational Health or HR. Depending on the changes, they might also have to give you a new contract of employment to sign
• Before you return to work, or on your first day back, they should have an informal private meeting with you, followed by a catch-up meeting after the first week
• If medical advice is that you’re unlikely to be able to return to work, and you’re entitled to a pension or lump sum under your pension scheme, you might be able to retire on the grounds of ill-health
• If you have a terminal illness, your employer should try to accommodate your wishes and make the most financially advantageous arrangements for you. This might include ill-health retirement or a lump sum payment from your pension scheme
• If you’re given a warning or dismissed, they should give you the right to appeal

There are also certain actions you should take.

• Obtain and follow medical advice
• Keep in touch with your employer while you’re off, to let them know how you’re getting on
• After seven calendar days off sick, provide your employer with a ‘statement of fitness to work’ (often called a ‘doctor’s fit note’)
• Provide a new fit note if you’re still ill and won’t be returning after the end date of the original fit note
• Give consent to your medical team so they can share reports about you with your employer
• If you have been diagnosed with a terminal illness, there is no obligation to tell your employer or colleagues, but it’s normally wise to do so, because if you don’t, they can’t provide you with the support you’re entitled to

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Disabilities covered by the Equality Act 2010

Under the Equality Act 2010, you’re disabled if you have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities.

• ‘Substantial’ means the effect on you is more than minor or trivial, e.g. it takes much longer than it usually would to complete a daily task like getting dressed
• ‘Long-term’ means the impairment has lasted (or is expected to last) for 12 months or longer, e.g. a breathing condition that develops as a result of a lung infection

Do you have a recurring or fluctuating condition such as arthritis? If yes, there are special rules that apply.

Do you have a progressive condition that is likely to get worse over time? If yes, you could be classed as disabled.

Have you got HIV, cancer or multiple sclerosis? If yes, you automatically count as disabled under the Act from the date you were diagnosed.

Is your condition the result of addiction to non-prescribed drugs or alcohol? If yes, it might NOT count as a disability under the Act.

• If you have a disability (as described in the Equality Act 2010), you employer has a legal obligation to make reasonable adjustments for you. If they don’t, it counts as discrimination, and you may be able to make a claim against them

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The usual process

You are legally required to submit a fit note from a doctor after seven consecutive days of absence. There is no legal obligation for you to tell your employer the reason why you’re off sick.

You’ll be invited to a capability hearing. This might be in the workplace, in your own home, a neutral location or remotely, depending on what you can manage, considering your illness.

You can invite a trade union representative or work colleague to attend with you for support.

You should get a written record afterwards.

Some exceptions

If you are under 55 and have a long-term health condition that means you won’t be able to return to work, you may be able to claim early retirement on the grounds of ill-health, also known as being ‘medically retired’.

If you have a terminal illness, you may decide to continue working for as long as possible, or you may prefer to leave work quickly. Your employer should listen to your wishes and support your plans as much as possible. Your pension scheme might allow for a lump sum payment to be made.

To find out more, check the criteria in your pension scheme.

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What this means to you

Your employer should have a written sickness absence policy (the best place to look is your staff handbook). This should include:

• The process for reporting absence e.g. who you should contact, how and when
• When you need to obtain a fit note from a doctor
• How and when you should keep in touch with your employer
• How return-to-work discussions will be held, when and who with
• How much you’ll be paid while off sick, and how long for
• How absence is tracked and reviewed by the employer
• When does sickness absence become “long-term”
• The approach in considering dismissal due to long-term sick leave

We act for employees in dispute with their employers. If you’re facing dismissal due to long-term sick leave, or have recently lost your job, let us know. You may be able to claim for unfair dismissal and/or discrimination, win back your job, or be paid compensation.

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Related reading

If you found this information useful, you might also like to read our related articles. These include:

• What are my rights to sick pay?
• Our expert guide to being dismissed for being off sick
• I was sacked after having time off sick with covid-19

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March 25, 2022 at 12:37 pm
Category: Blog, Unfair Dismissal

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