How Long Can You Be On Sick Leave Before Dismissal? UK Law For Employers

Excessive absence is more than fair grounds for dismissal, but when it’s due to ill health, an employee has extended protections. Still, no set framework dictates a timeline of when you can dismiss for sickness absence – it’s a grey area that requires you to tally and make your own decision.

But how do you ultimately make your decision? In this article, Real Business will outline the rules relating to dismissing employees for sickness absence, including avoiding unfair dismissal, sick pay obligations and more.

How do you dismiss an employee for excessive sickness absence?

UK employment law concerns itself with ensuring that employers act according to a fair procedure. It doesn’t concern itself with a minimum or maximum period before allowing sacking. To answer this question, we’ll have to explore an employer’s rights to terminate an employee for any reason.

The following will be a breakdown of the checks you should make, and how to follow fair procedure in pursuing a dismissal over sickness absence, broken up into three steps to take.

1. Length of Service

Employees who have worked for less than two years cannot file ordinary unfair dismissal claims, meaning it’s considered fair and lawful to fire these employees for any reason (outside of unlawful discrimination as per the Equality Act of 2010). You don’t even need to follow a disciplinary or capability process – simply give them their notice, and follow any contractual dismissal procedures set out in your business policy.

Things change if two years passed since your employee’s start date without an invalid break of one full week, however.

The single most powerful protection against dismissal that an employee has for any reason is a length of service of more than two years. It grants them unfair dismissal protections under the Employment Rights Act 1996, giving them a right to claim against their employer at an employment tribunal under these grounds.

Unfair dismissal is the key part here. To remove an employee, one of the following conditions has to be met:

• Misconduct – Either several instances of lesser misconduct, such as lateness and rudeness, even after being checked by a disciplinary hearing(s), or a single case of gross misconduct, such as theft, violence or fraud.
• Incapability – Being no longer capable of performing duties to a required standard through performance or ill health, such as sickness absence.
• Redundancy – If the business is downsizing, restructuring or even closing down, dismissal is seen as an unavoidable consequence.
• Statutory illegality – If an employees status legally invalidates them from working, such as not having a work visa.
• Some Other Substantial Reason – This is a legal catch-all term for dismissals that don’t fit into standard categories, such as conflict of interest or refusal to accept contractual changes.

Dismissing someone that has been employed for 2+ years due to sickness absence falls under incapability, which brings us to the next step.

2. Capability process

To ensure transparency and to follow a fair procedure, you need to execute a capability process.

For employees who have multiple short-term absences:

1. Monitor and identify patterns – Track the dates, reasons and frequency using a scoring system.
2. Mandate return-to-work interviews – Every time they return, have a proper interview that will be logged, and let them know the impact they have on leaving work. We recommend ruling out that their sickness absence isn’t work-related during the interview.
3. Issue formal warning – Issue disciplinary action after hitting a trigger point, such as 3 absences within three months.
4. Occupational health referral – Before taking any serious action, consider referring them to occupational health so you can rule out any underlying health or disabilities, protecting you against discrimination claims.
5. Final disciplinary action – If absences continue, show your hand by inviting them to a final disciplinary hearing and give them the right to be represented, and even open up the possibility of meeting in a neutral location.
6. Dismissal with notice – If no improvement follows, dismiss for unauthorised or persistent absence.

When long-term sick leave occurs, the employee will have stronger protections if their medical condition is verified by a doctor. The following is the most effective practices for employees currently undergoing a long period of sick leave:

1. Obtain medical evidence – Refer the employee to the occupational health department or request a GP medical report (not a fit note). Document any refusal to provide medical evidence. The reason you want a medical report, and not a fit note, is that you want them to provide in-depth medical information processed by a licensed professional:
   • What’s the diagnosis and prognosis?
   • Can they return to work, and if so, when?
   • Are they fit for their current duties?
   • What adjustments (if any) would help?
2. Assess disability status – Review the condition to see if it qualifies as a disability under the Equality Act of 2010. If so, you are under a legal obligation to consider and implement reasonable adjustments.
3. Hold formal consultation meetings – invite the employee to a capability review meeting, allowing them representation if needed. Discuss the medical findings, as well as how their absence is impacting the business. Introduce options for adjustments, redeployment or a phased return to work shortly. Keep detailed written records. Do not tell them that they may be facing dismissal; play your cards close to your chest.
4. Test adjustments – Allow them back into work and monitor.
5. Final capability hearing – If they do not return to work, or the adjustments are not/cannot help, invite them to a final capability hearing to discuss potential dismissal on grounds of capability.

3. Issue dismissal

Ensuring all options are exhausted before initiating the dismissal is critical in covering yourself, as it’s supposed to be a last resort. Ensure that you keep all evidence at hand, and accept that if they decide to go to the employment tribunal, you have evidence that you followed a fair procedure.

How much sick pay do you have to pay?

Of course, it isn’t all about the money, but if you have a generous sick leave policy at your business, then you may find yourself paying out a lot of sick pay to an employee on long-term sick.

You’ll usually be entitled to switch your employees on to statutory sick pay if they are on long-term sickness, which will provide them with a flat rate of £116.75 per week, payable for up to 28 weeks. Some employers offer contractual sick pay (CSP) on top of this, which may be full pay for a set time before reducing to half pay before ending.

Regardless, the amount of sick pay you have to pay as an employer to an employee who is unable to work can certainly impact your decision. Most employers are happy to pay employees sick pay, but if it is costing your business more money than the employee can bring your business whilst sick, you may need to consider your position.

How do you protect your business from sickness absence abuse in the future?

Many employers who work in intense fields come to realise the most important protection they have is having a strong and clear sickness absence policy, with emphasis on:

• Reporting procedure – Mandate your employees call in to work sick, and specify when/how to ensure minimised effect on the business.
• Certification – For absences under seven days, you can choose to require them to fill a self-certification form stating the dates and reasons for absence. For absences above seven days, you have the right to request a fit note.
• Return-to-work interviews – Outline the point in which return-to-work interviews will occur, with the earlier the better. Conduct one after every absence, even short ones.
• Absence monitoring systems – Track the frequency and the patterns in absences, such as Fridays or post-holidays.
• Trigger points – Set a threshold for when attendance reviews will be conducted, such as 3 absences within a 3 month time frame.
• Repeat absence escalation – Should there be repeat absences, add a policy that allows for fit notes at any time before 7 days. Ensure that consent is documented.
• Disciplinary action – Unauthorised absence or false sickness claims should be classified as misconduct.
• Contractual clauses –Add clauses that allow you to protect yourself by withholding sick pay if the process isn’t followed, requiring medical exams and recovery of overpaid sick pay in cases of proven fraud.

If they are frequently breaching these conditions then disciplinary action, and later dismissal, may be your only option.

What are some alternatives to dismissal?

As a responsible employer, you should consider how you can support your employees during this difficult time in their lives. All of the following options should be explored before dismissal to protect your business and support your employee as effectively as possible.

• Annual leave – Would it be possible for your employee to use some of their annual leave to support them during their illness? If the sickness is only expected to be short term but statutory sick pay isn’t enough for them, you might be able to support them by approving annual leave and issuing holiday pay. This is only appropriate if suggested by your employee.
• Suitable alternative work – It might be that your employee’s sickness will forever change their ability to do their current job role, but you might be able to find room at your business for them in another job role more suited to their new abilities.
• Reasonable adjustments – Adjustments can include anything from temporary placements in other departments, a mentor or partner on shift, a change in work conditions or duties, shortening working hours, or even allowing your employee to work remotely. Whatever adjustments are being considered must be set out clearly to your employee in a meeting with their line managers and HR.
• Ill health retirement – Ill-health retirement may be an option for older employees who are on a qualifying pension scheme.
• Phased return to work – A phased return to work may also be necessary, where your employee returns partially to their role, until such a time that they’re fit and able to return to work in a full-time capacity.

Conclusion

Before considering dismissal, you should first consider how you can support your employees. If reasonable adjustments can’t be made to bring your employees back on board, then you must give them fair warning of your intention to dismiss them. At every stage, your employees must be kept in the loop, and they should have a right to respond at all times.

The key is to ensure your investigation is thorough and that you follow each stage leading up to dismissal carefully. However, even with the best will in the world, not all employees will be able to return from long-term sickness absence.

When this happens, you should consult their GP, gather as much information about their illness as possible, and then present your reasons for dismissal clearly, allowing your employee the right to appeal. When you decide to begin the dismissal process is up to you as a business owner – there is no set rule on how long employees can be on sick leave before dismissal in the UK.

FAQ – Can you dismiss an employee if they are inflicted with a disability or long-term illness?

No employer has the right to dismiss an employee with a disability or illness that is protected under the Equality Act 2010. Here, it is your responsibility to do everything in your power to accommodate your employees in the workplace. This may look different for each business.

If, however, you are unable to accommodate your employee due to unwillingness on their part or a complete lack of compatibility between their illness/disability and their job role, then a dismissal may be necessary still.