Can an Employee Be Dismissed While on Sick Leave?

Termination of employment is possible for an employee on sick leave. Typically, it’s due to misconduct (which can be unrelated to their absence from work) or breach of contract. There are justifiable reasons for dismissal, even if an employee is on sick leave with a genuine illness. Although employers need to be careful to follow the correct procedures, act reasonably and carefully, sickness is not a total bar to termination.

An employee on long-term sick leave due to an illness or condition which prevents them from doing their job—for instance, a lorry driver with a back problem that prevents them from sitting for long periods—cannot be dismissed for that reason. This is a capability issue, not a matter of misconduct.

There can be valid and justified reasons to dismiss an employee, even if they are on sick leave for legitimate reasons. If, as in the example above, an employee has a capacity issue, the employer must consider whether they could make any reasonable adjustments to help the employee return to work before termination takes place. This includes considering the employee for other positions in the company that would not be impacted by their capacity issue. Depending upon the nature of the illness or condition—and the type of job—this may not be possible.

The employer must behave fairly and reasonably. Persistent and repeated sickness could have an underlying disability as its cause, and it would be discriminatory to dismiss an employee on such grounds. 

Whatever process the employer follows for dismissal should be fair and transparent. Medical records and a written account of how the employer handled the employee’s case should be kept. The employee should be offered a reasonable recovery period and the opportunity to discuss or dispute any medical evidence the employer holds. 

The written record needs to be robust and detailed in case the dismissal is later challenged at an employment tribunal.