When you are off work with illness, you may worry about your job. As one of the potentially fair reasons for dismissal under the Employment Rights Act 1996 (ERA) is ‘capability and qualification’, you can be fired whilst on sick leave in the UK.
The critical question is: at what stage in long-term sickness will your dismissal be fair, and what are your rights?
Reasons You Can Be Dismissed
Fair dismissal comes in many shapes and sizes, though employers must follow strict processes and have justifiable and provable reasons.
Capability and Qualification
Your employer can dismiss you if you are unable to perform your role. You may have struggled to adapt to new processes or technologies, to work with your colleagues or with an illness or condition that prevents you from doing your job.
However, your employer must provide adequate training and reasonable responsibility adjustments. They should warn you that your work is unsatisfactory and allow you to improve.
Illness
As covered by the capability to work reason, an employer can cite long-term illness as the reason for dismissal. They must offer a reasonable amount of time for you to recover, determined by your illness, and can source temporary cover for your role.
Redundancy
If your employer is reducing the size of their workforce, you may be made redundant. It is often the result of:
- A new technology or procedure that has made your job obsolete
- Reducing costs by cutting employees
- A business merger or acquisition
- Relocation
- Business insolvency
However, your employer does have many duties to treat you fairly.
A Statutory Restriction
If continuing your employment would break the law, your employer has grounds to dismiss you. The most common example is a lorry driver losing their licence. Your employer should attempt to find suitable alternative work for you before dismissing you.
Some Other Substantial Reason
An employer can dismiss you if they have an overwhelming reason that does not discriminate against you. It may be:
- Imprisonment
- Refusal to accept reasonable changes to your employment terms as a result of an organisational restructure
- Personality clashes with other employees
Fair Dismissal Process
Employers must follow a fair dismissal procedure (remember, the Acas Code of Practice on Disciplinary and Grievance Procedures is not applicable here). They should learn everything about your medical condition and consult you appropriately before deciding whether or not to dismiss.
Reasonable Investigation
Knowing the facts is vital, and your employer must demonstrate a diligent investigation to prove that you cannot continue in your role.
The following criterion is relevant:
- The nature and type of your illness
- The prospect of you returning to work and the likelihood of the illness recurring
- How essential is your work, and how disruptive is your absence for the business?
- Do you fully understand their position – do you understand how it is dealt with in your employment contract and policies and that, in due course, it will end your employment?
- Your length of service
Making Reasonable Adjustments
Following your investigation, your employer must understand your health condition and prognosis and consider whether you suffer from a disability.
If there is a disability, your employer must reasonably adjust your role to not discriminate against you.
In every case, before dismissing, the employer should also: –
- Know the up-to-date medical position
- Consult fully and carefully with you (following their policies)
- Consider the availability of alternative employment
Having carefully covered all the above, the employer should consider whether a reasonable person would expect them to keep their job open any longer.
Considering Whether a Dismissal Was Fair
When questioning whether your dismissal is fair, you should always start by assuming that it is unfair and then evaluate whether it meets the five musts of fair dismissal. It must:
- Be a fair reason, as listed above
- Follow a fair procedure
- Account for the individual circumstances of the case
- Follow the employee’s contract of employment
- Not discriminate
If you dispute the dismissal, the case may appear in an Employment Tribunal. The Tribunal will look retrospectively at the following:
- The availability of temporary cover and its cost
- The sick pay situation and the cost to the business
- The administrative costs of keeping you in the business
- The above in relation to the size of the business
The employer will have to show it has obtained up-to-date medical evidence. An occupational health report from three months before the dismissal date is typically not good enough.
The employer must show the Tribunal evidence of the impact and cost on the business unless it is self-evident that it was severe.
However, the Tribunal and Appeal Courts have decided employers are entitled to some finality in cases of long-term sickness.
Get Employment Law Support
If you believe you have been unfairly dismissed, do not hesitate to get in touch with our employment solicitors.
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