It is bad enough that your health has taken a hit, but what if the same sickness has put your career in jeopardy? The lingering fear of being fired while on sick leave is real for many UK workers, thus prompting the question of whether your employer can or can not fire you while you take time off to recover from your sickness.
By drawing insight from the provisions of UK employment law, this article will provide a comprehensive and accurate answer to this question:
The legal rights you have while you are on your sick leave
Situations where firing may still be an option
What steps you can take to protect yourself
Legal Protections for Employees on Sick Leave
Under the Employment Rights Act 1996, UK employees on sick leave enjoy rights like:
Unfair dismissal sick leave UK: As stipulated in the act, if an employee who has been employed for two years or more calls in sick and has medical evidence to back it up, such an employee will be protected from getting fired.
Statutory Sick Pay (SSP): Sick employees will also be paid at least £116.75 by their employers for up to 28 weeks. While that is the legal minimum, some employers may offer more, especially if they have their own special sick pay scheme (or occupational scheme). Refer to your employment contract to see if you are entitled to enhanced sick pay benefits.
The act also gives employers the legal right to terminate the contract of an employee if they can prove that the employee is no longer capable of performing their job due to long-term illness.
Protected Characteristics
The Equality Act of 2010 also extends additional protections to employees whose long-term mental and physical illness qualifies as a disability. For starters, your employer is legally obligated to make reasonable adjustments to accommodate you. Additionally, unless you voluntarily resign, they are not legally allowed to sack you because of your ailment.
Below are some mental and physical impairments that are protected under the Equality Act of 2010:
Menopause
Autism, Neurodivergent or ADHD
Phobias, OCD
HIV and Aids
Cancer
Skin diseases, face scaring and any other body or face disfigurement
Blindness
As an employer, if you dismiss any employee as a result of any of these characteristics (and more), you could get sued for unfair dismissal.
Can an Employer Dismiss an Employee on Sick Leave?
A sick employee can be dismissed on the grounds that:
They are no longer capable of doing their job due to the severity of the illness
They consistently call in sick, leading to poor attendance, which negatively impacts the business.
They take sick leave without providing sufficient supporting evidence, such as a doctor's note or medical certification.
While all these are valid reasons, employers must ensure that the dismissal adheres to a just and comprehensive process that includes discussions, medical assessments, and consideration of other options, like changing the position or working conditions.
Fair Procedure
To ensure fair dismissal, employers must follow these steps before dismissing an employee on sick leave:
Carry out a proper investigation, such as obtaining medical evidence to know the nature of the sickness and how it impacts the employee's ability to work.
If your investigation reveals any issue, inform the concerned employee in writing.
Employees also have the right to defend themselves, so ensure that you summon the employee for a disciplinary hearing. For transparency purposes, provide the employee with the right to be accompanied.
After the disciplinary hearing, inform the employee in writing of your final decision (dismissal, redeployment or a phased return to work).
Give the worker the ability to file an appeal.
Reasonable Adjustments
If your illness qualifies as a disability under the Equality Act 2010, your employer must consider reasonable adjustments before making any dismissal decision. For example:
They could offer assistive technologies if you are physically impaired.
Work time and role could also be modified if you are mentally impaired.
As an employer, failure to make these adjustments could lead to a disability discrimination claim.
Medical Evidence and Occupational Health
Role of Medical Evidence
Medical evidence is crucial in confirming the validity of a sickness claim. As an employer, you must rely on it to determine whether an employee can resume work or if any modifications are required. The evidence, which can come in the form of a doctor’s note, will tell you all you need to know about the health and general condition of the employee. Having prior knowledge about the health condition of an employee will ensure that you don’t hastily make a decision that will jeopardise your integrity and your employee's future.
Additionally, you can send an employee to an occupational health professional or service to assess their physical or mental health. The result of the assessment will then be used to determine whether the worker can resume their job or if any modifications are required.
Unfair Dismissal and Disability Discrimination
If you're an employee on sick leave and find out you’ve been dismissed without a fair process, such as:
Not being properly consulted about your health status or ability to return to work
No reasonable adjustments made to accommodate your illness or disability
Receiving no official warnings or discussions about your job performance
Your employer not following proper termination procedures under UK employment law
Being dismissed without considering a doctor's advice or note
You may have grounds to file a claim for unfair dismissal or disability discrimination with an employment tribunal. It's important to gather all relevant evidence and seek legal advice to support your case.
Also, if you can prove to the employment tribunal that you have been discriminated against and dismissed as a result of your mental and physical challenges, then you may be entitled to some sort of compensation for lost wages and emotional distress the discrimination/dismissal has caused you.
Steps to Take If You Are Dismissed While on Sick Leave
Check the Reason for Dismissal: As the saying goes, you wont know if you don’t ask. If you were dismissed while on sick leave, the first step is to contact your employer and ask for a written explanation of the reasons why you were dismissed. The written explanation will serve as evidence if you intend to seek legal redress regarding the decision.
Consult Legal Advice: You should get legal counsel if you think your termination was discriminatory or unfair. Solicitors specialising in employment law can evaluate your case and assist you in filing an unfair dismissal or disability discrimination claim. You must act quickly because there are deadlines.
Appeal the Dismissal: If you believe that your employer did not follow follow due process before firing you, then you have the legal right to appeal the dismissal decision. The appeal must be done in writing, and in there, you must explain why you think the dismissal is unfair and make a case why the decision to dismiss you should be overturned.
Alternatives to Dismissal
As an employer, if for whatever reason, you don’t intend to fire an employee who is only just recovering from an illness, then you can consider the following alternatives:
Phased Return to Work
This simply refers to the process of gradually transitioning an employee back to work after a period of illness or injury. If you are trying to phase a recovered employee back into the work place, you can:
Reduce their work hours for the time being or
Give them a new role to decrease their work load.
Redeployment
Redeployment simply refers to the process whereby a worker is moved to a new role in the same organisation. As an employer, if you don’t want to dismiss a sick employee, you can utilise this method by moving the recovering staff to a new role that is more suitable for their health condition. Note that the staff will still be paid the same salary unless they negotiate a reduction.
Extended Sick Leave
You can also give the recovering staff an extended sick leave to ensure that they will have more time to heal. This method, apart from the fact that it ensures that recovering workers don't experience relapse or further complications, also demonstrates that you genuinely care for your employees' well-being.
Challenges and Risks for Employers
Dismissing an employee on sick leave without following proper procedures can affect you and your organisation in many ways:
Your reputation could get damaged
You could be forced to reinstate the dismissed staff
You will be ordered to compensate the employee
The remaining employees could lose trust in you, likely affecting productivity and morale.
To ensure that none of these happens, make sure that you gather sufficient medical evidence, consult with the employee, or consider reasonable adjustments before you fire such an employee.
As an Employer, you must also be cautious when dealing with employees whose illness qualifies as a disability. Failing to make reasonable adjustments or dismissing an employee without properly considering their condition could result in costly disability discrimination claims.
Best Practices for Employers
Obtain Comprehensive Medical Evidence: A good rule of thumb is never to base an important decision on mere assumptions or incomplete information. Therefore, before making any dismissal decision regarding your sick employee, it is important that you gather comprehensive medical evidence. You can either 1) Ask the sick employee directly for the medical report or 2) Refer the employee to an occupational health specialist for an independent assessment of their physical and mental health.
Consult with the Employee: Communicate openly with the employee during their sick leave. This will help you understand their current medical condition and when they may return to work.
Follow a Fair Procedure: Even though they work under you, your workers are still humans and they must be given the benefit of doubt. Therefore, before you take their source of livelihood away, follow a fair procedure, such as examining their medical evidence, holding meetings to discuss their options, and many more.
Legal and Regulatory Considerations
The Employment Rights Act 1996 and the Equality Act 2010 are two prominent employment laws in the UK that safeguard employee rights on sick leave, and as an employer, it is your legal obligation to adhere to these laws. Below are some of your legal obligations:
Follow a fair and reasonable dismissal process (Employment Rights Act 1996)
Make reasonable adjustments for disabled employees: (The Equality Act 2010)
Provide Statutory Sick Pay (SSP)
Give the dismissed employee the chance to appeal the decision.
Explore other means to integrate employees back into the fold instead of an outright dismissal while on sick leave UK
Employment Tribunal Claims
As an employee, you can contest the decision of your employer if you feel like you have been wrongly dismissed while on sick leave. All you have to do is notify Acas (Advisory, Conciliation and Arbitration Service) if you plan to make a claim. Typically, you won’t get charged for filling out a claim form. However, you could be asked to pay if you need to summon a witness.
Also note that:
The claim should be filed within 3 months of your employment ending or the issue occurring.
For unfair dismissal claims, the 3-month period starts from the day your employment ends.
For discrimination, the period begins from the date of the incident.
Before going to tribunal, ACAS often gives dismissed employers the chance to settle the issue with their employer.
Seeking Legal Advice
Whether you are an employer or an employee, it is important that you consult a solicitor to ensure that all legal requirements are met during the dismissal process and to avoid potential legal disputes.
If the employment tribunal decides that the employer is in the wrong, their reputation could suffer, and they may be instructed to compensate, and possibly reinstate the worker. Conversely, if the tribunal determines that the employee has acted unreasonably and the sick leave dismissal was fair, they might be required to bear the costs of the people or organisations they are claiming against.
FAQs
Can my employer fire me on sick leave in the UK?
While UK employees are protected against unfair dismissal during their sick leave, your employer may still be in their right to fire you if, after reasonable adjustments, your illness has rendered you completely incapable of fulfilling all your duties in the organisation. Also, you could get dismissed on long-term sick leave.
What are my rights if I’m dismissed while on sick leave?
You have the right to be given a valid, written reason for your dismissal, and the employer must have followed a fair procedure. Additionally, you may be able to challenge your dismissal if you believe it was unfair, discriminatory, or did not comply with the required legal steps.
How can I challenge an unfair dismissal due to sick leave?
In the UK, you can formally challenge your dismissal at the employment tribunal. Typically, this should be done within 3 months of your employment ending. All you have to do is fill out their form free of charge online or send it through post.
Does my illness qualify as a disability under UK law?
Your illness may be classified as a disability if it has a long-term and significant impact on your ability to perform daily activities. Under the Equality Act of 2010, an illness is generally considered a disability if it lasts (or is expected to last) 12 months or more and significantly impairs your ability to work or perform daily tasks. If your illness meets this definition, your employer must make adequate adjustments so that you will be able to perform your job.
What steps should my employer take before dismissing me on sick leave?
Before dismissing you while you are on sick leave, your employer must review your medical report or occupational health assessment report, determine whether any reasonable adjustments can be made to allow you to continue in your role, and communicate directly with you about your health and options.
Conclusion
While employers can dismiss employees on sick leave, they must, however, follow a fair process as stipulated in the Employment Rights Act 1996 and the Equality Act 2010. If you believe you have been unfairly dismissed while on sick leave, Lawhive can give you all the support you need.
Our expert employment solicitors will help you understand your rights and explore potential claims for unfair dismissal or discrimination. Get a free legal assessment today.