When you are off sick you have to deal with a lot of worries about what can happen. There can be financial worries, and you might be concerned about the impact on your career. A common concern is being worried work can sack you for being off sick.
We’ll look at what’s involved with sick leave and your rights when signed off work. There are some situations in which an employer can fire you for being off sick. However, in most cases strict procedures have to be followed before they can do so fairly.
If an employer does not follow the correct procedures it may leave them open to a claim of unfair dismissal. In cases involving disability, employees have protection from unfair dismissal from day one of employment.
How Long Can You Be Off Sick Before Being Sacked?
There are no set rules on length of sickness absence before you need to worry about being sacked. If you are off sick long term, your employer may begin a process called a capability assessment.
The outcome of these assessments may be the conclusion that you are no longer fit to perform your role. However, these procedures are also used to help employees back to work. They can also be used to identify reasonable adjustments to allow workers to continue in employment.
For that reason, it’s important to engage in any process designed to assess your capability. If you fail to do so, it may reduce your protection from unfair dismissal.
See also: How many sick days per year is acceptable?
What is Long Term Sick Leave?
Employers usually consider long term sick leave to be anything over 4 weeks. It’s important to remember that a sick note / fit note is required for sick leave over 7 days long.
Sometimes, employers will opt for carrying out capability assessments after SSP ends at 28 weeks.
Protection from Disability Discrimination
Disability discrimination happens when an employee is discriminated against because of their disability. There are protocols in place to protect employees from discrimination and unfair dismissal at work.
Employers have a duty of care for their employees and they should make reasonable adjustments in the workplace when required. You may also be asked to attend a welfare meeting if you have been off work sick long term. These are used to check you are OK and discuss ways your employer can help your return
The Equality Act (2010) sets out 9 protected characteristics and disability is one of these. It is the responsibility of the employer to ensure no worker is treated unfairly due to a disability.
The work environment should welcome inclusion and treat everyone the same where possible.
Unfair Dismissal Due to Sickness
If you are fired due to your sickness, then this may be classed as unfair dismissal. An employer may start the procedure of sacking you by claiming it is down to long term absence or the inability to fulfil your job role.
There are a number of ways in which a dismissal on grounds of illness could be deemed unfair by an employment tribunal.
- If you have 2 years service, a failure to follow proper procedure for fair dismissal could result in an employment tribunal ruling the dismissal unfair.
- If your illness was deemed a disability, it could lead to a dismissal being found to be automatically unfair. This protection is in place from day 1 of employment.
- In a situation where your employer did not make reasonable adjustments to reduce disadvantage suffered due to illness. This can be determined to be unlawful discrimination. The onus is on the employer to prove they made all possible adjustments.
- If your illness is caused by work related issues your employer may be found to have breached duty of care to the employee.
Fair Reasons to be Sacked For Being Off Sick
Employers must have fair reasons for dismissing a member of staff on the grounds of their illness. Short term illnesses usually involve a warning about the number of days an employee has taken off sick and a meeting to discuss this as required.
Taking too many days off over a period of time may result in disciplinary procedures. The threshold for this will usually be outlined in your workplace sick policy.
It gets a bit trickier for the employer when it comes to long term sickness.
- They should ensure they have asked adequate questions about your illness and spoken with you personally. They should have requested doctor’s notes and any other evidence of the illness.
- A meeting about reasonable adjustments that could be made in light of your illness should have taken place.
- Consideration should have been given to whether another more suitable position could have been given to you rather than dismissal.
- Employers should try their best to keep the job open for your return but this isn’t always practical and can prove detrimental to businesses.
- There will usually (or should be) a first and then a final warning of their intention to sack you.
In conclusion and to answer the question then yes, an employer can sack you for being ill. However, there are strict prodedures. An employer must follow them during the dismissal process. Failure to do so may mean employees can claim unfair dismissal.
Further Reading
- Can you be sacked for being off sick with depression? In depth guide looking at employee rights if an employer wishes to dismiss on grounds of capability.
- How many sick days before a disciplinary? A look at how employers decide when sickness absence is a disciplinary issue.
FAQS
There are no set limits when it comes to being off sick from work, however, SSP is only available for 28 weeks. After this time you may be entitled to other benefits and work may insist on a meeting to discuss your job role.
This is a grey area and there are no definitive answers about how many sick days can be had before a disciplinary takes place. Correct procedures should be followed though and dismissal should only follow if all other avenues have been exhausted.
