Can we dismiss an employee on sick leave?

Can an employer dismiss an employee who is on sick leave? Legally, an employer may be able to dismiss an employee who is off sick, but it will depend on the facts of the situation. It’s also important for an employer to follow a fair procedure and avoid discrimination. 

Ivelina White, Paralegal on Coodes’ Employment team, explains how to undertake this process correctly. 

Employees on short-term sick leave

Intermittent short-term absence can be frustrating for employers but care should be taken if you are considering action. Being on sick leave itself is not a valid reason to dismiss an employee. However, a valid reason could be if the employee does not follow the employer’s sick leave and absence policy or fabricates an illness.

Employers should:

• Identify the pattern of absences
• Create a log
• Start a series of warnings
• Consider medical evidence
• Follow a fair procedure
• Dismiss if behaviour does not improve

In any event, a fair disciplinary procedure has to be followed before dismissing the employee to mitigate against the risk of a claim being brought to tribunal.

Employees on long-term sick leave

Long-term absence from work for health reasons is not a form of misconduct. A long-term health condition and absence affecting the employee’s ability to work can be a fair reason to dismiss them. This should be done after following fair capability procedures.

Employers should:

• Consult with the employee
• Consider medical evidence and potential disabilities
• Look at alternative employment
• Consider retirement options
• Follow a fair procedure
• Only dismiss if employee unable to return and no other options available

It is important to establish if the long-term condition amounts to a disability, as further steps may need to be taken. If the employee’s condition is a disability, a full and fair procedure must be followed to avoid any future claim for disability discrimination.

Employer next steps

Regardless of the situation, employers have to act reasonably, follow fair procedures and carry out investigations before resorting to employee dismissal. Consideration should be given as to whether the absence may be due to a condition that amounts to a disability under the Equality Act 2010.

In addition, employers should have policies governing short-term and long-term sickness absences.

Coodes are available should you have any employment-related questions relating to sick leave or other issues. Our specialist Employment team offers local companies an Employment Retainer Package that includes ad-hoc employment advice as and when required, template letters and advice and assistance with absence and performance management.

Coodes Solicitors, one of the South West’s longest established and leading law firms in Cornwall and Devon, supports businesses to keep up to date with the most recent changes in Employment law. If you need some friendly advice, call Ivelina White on 01872 246 237 or email ivelina.white@coodes.co.uk