Our expert guide to being dismissed for being off sick - Paul Doran Law

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Our expert guide to being dismissed for being off sick

Our expert guide to being dismissed for being off sickOur expert guide to being dismissed for being off sick

If you’re dismissed because you’ve been off sick, your company must follow a proper procedure. If they don’t, you can make a claim against them. Our expert guide tells you more…

For eight years, Colin Kane was a driver for Debmat Surfacing in Gateshead. He suffered from chronic obstructive pulmonary disease (COPD). Once, when Colin was off sick, contracts manager Shaun Johnson spotted him smoking outside a social club near his workplace.

At a disciplinary hearing, a director told Colin he shouldn’t be in the pub if he was unfit for work and on antibiotics, and he was fired for a “breach of trust and dishonesty”.

Colin took the company to the employment tribunal. The judge found that going out for a drink while ill was not against the firm’s rules, there were flaws in their investigations, and their disciplinary procedure fell below the standard of a “reasonable employer”.

Because of this, Colin won his claim for unfair dismissal.

Long-term sickness

As explained, Colin’s employer didn’t behave in a reasonable way. If you’re frequently off sick, or on sick leave for a long time, here’s what your employer ought to do:

1. Carry out an investigation into your condition

This includes:

If the evidence shows you’ll be absent for a long time or that it’s unlikely that you’ll ever be able to return to work, it will be easier for your employer to justify dismissing you.

2. Explore options to accommodate your needs

Assuming you’re expecting to return, your employer might be able to:

In law, this qualifies as making a “reasonable effort” (the amount of expense that counts as ‘reasonable’ depends on the size of the company). If they don’t do this, you might be able to make a claim against them for discrimination.

If they do make these adjustments for you, but you choose not to go back to work, they may be able to justify dismissing you.

The other situation when it might be considered reasonable for your employer to dismiss you is if you’re off sick for so long that you are no longer capable of doing your job.

In either case, they will have to follow the correct disciplinary and dismissal process. If they don’t, you can make a claim of unfair dismissal against them. You could have an even better chance of winning if your long-term sickness counts as a disability.

As employment lawyers, we often help employees make – and win – unfair dismissal claims. Contact us FREE to discuss your situation and we’ll advise your chances of success.

Correct disciplinary and dismissal process

Before you are dismissed, your employer should follow a proper process which is based on the Acas code:

First, your employer should discuss their views with you. If you’re invited to attend a disciplinary meeting, but you’re too ill to attend, your employer should:

If things are not resolved, here’s what happens next:

As an example of what happens when the proper process isn’t followed, read our article (linked below) about the B&Q worker who was dismissed for being off sick.

What counts as ‘reasonable’?

When deciding what actions count as ‘reasonable’, these are some of the considerations that the employment tribunal will take into account.

How long have you worked there?

If you’ve worked there for a long time, it could be reasonable for your employer to put up with a year’s sick leave, but probably not if you’ve only been there a short time.

How big is your employer?

A large employer might be able to cope better with your absence than a small one, and it would probably be easier for a large employer to find you suitable alternative work.

Could your employer manage without you?

If you do skilled work, it could be difficult for your employer to find suitable cover. If you do a semi-skilled or unskilled job, it might be easier for them to find other people to cover.

Could they cover your work while you were absent?

Could other staff do your work or work overtime? Could your employer hire a temp or use agency staff? What would it cost them to arrange temporary cover?

When are you likely to recover?

If you are likely to make a full recovery it is unlikely to be reasonable for them to dismiss you. Are you likely to get better and when? If you need further treatment, when will this be?

Related reading

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