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Can you be fired over sickness?

Most employees take sick leave at some point in their employment, but at what point is the employer justified in invoking disciplinary procedures, or even sacking an employee, over taking sick leave?

Fair reasons for dismissal

Under the Employment Rights Act 1996, employers have to have a fair reason for dismissing an employee.

That could be a reason relating to your conduct, your capability to do the job, or some other substantial reason.

What this means is that if you are dismissed over sick leave, your employer could be seen to be acting fairly. The following example illustrates the point:

Joanne works as a sales executive. An important part of her job is building and developing strong relationships with clients in order to secure repeat business. She has experienced a period of general unconnected poor health, and has taken a total of ten weeks off sick in the past six months. During this time, her clients have not received the standard of personal service they have come to expect and some have started taking their business to a competitor.

Joanne's employer has given her a written warning about her persistent sickness absences in the past, in accordance with the disciplinary policy of the business. They have conducted an investigation into whether her ill health is work-related and whether the employer can do anything to improve her attendance.

Joanne's ill health may be considered as damaging her capability to perform her role, because building and maintaining strong client relationships is a key aspect of what she is employed to do. She cannot perform that role adequately if she is off sick for long periods. The employer may also consider the damage to the business (clients taking their business to a competitor) to be another substantial reason why Joanne may be fairly dismissed.

What does the employer have to do?

In law, an employer is acting fairly in dismissing an employee if they can be seen to be acting reasonably in treating the reason for dismissal as "a sufficient reason" for doing so. In the example above, Joanne's employer seems to be acting reasonably. They have noted a damage to the business which is directly related to Joanne's absences. They have followed a procedure whereby Joanne has been warned with regard to her absence, and have even conducted an investigation as to whether her ill health might be improved by some action on the part of the employer.

If Joanne's absences due to sickness did persist following the written warning, a decision to dismiss her may be lawful, although Joanne may wish to take legal advice about this.

What would the Tribunal look for?

Some cases involving dismissal on the grounds of sickness absence do come before the Employment Tribunal. The decision of the Tribunal in such cases depends on a wide variety of factors, including how long the employee has been in employment, the illness the employee is suffering from and whether it is related to their work, and how other employees are treated in the same or similar circumstances.

What if the employee has a disability?

If the employee has a disability, as defined under the Equality Act 2010, the situation may be different. The Equality Act defines a disability as a "physical or mental impairment" which "has a substantial and long-term adverse effect [on a person's] ability to carry out normal day-to-day activities"

With such a definition in place, it is clear that sick leave could be related to an employee's physical or mental disability. Employers must be extremely careful when dismissing employees who may fall into this category.

What if the employee is pregnant?

Pregnancy can lead to a range of illnesses which can affect a woman's capability to carry out day-to-day activities, restrict mobility, or even require full bed rest.

Crucially, pregnant women have a period of protection which can extend from the beginning of the pregnancy through to the end of their maternity leave entitlement. Dismissing a pregnant worker on the grounds of illness arising out of her pregnancy would be unlawful and there is likely to be a claim for unfair dismissal and discrimination.

Get advice!

If you have been affected by any of the issues raised in this article, contact our employment lawyers for advice. Call us on 0800 422 0241, or complete our contact form and we will get back to you.