How Long Can An Employee Be On Sick Leave Before Dismissal?

Employees being off work due to sickness is a common challenge businesses face. Usually, absences are short-term, with staff returning to work within a few days. However, the situation becomes more complicated when an employee takes extended sick leave, often leading to operational and financial strain. 

Companies must understand their obligations regarding sick leave to protect the business and their employees while minimising the risk of legal disputes.

This article explains the legal position, fair reasons for dismissing someone, the procedure, and whether companies can dismiss staff who are off sick with stress. For advice, contact Helix Law. 

Can You Dismiss Someone When They Are on Sick Leave?

While dismissing someone on sick leave is allowed under English and Welsh law, employers must meet certain criteria to justify such a dismissal. Failure to follow the correct rules and procedures can result in employees claiming unfair dismissal or discrimination. 

Sick Leave: What the Law Says

All workers in the UK benefit from basic employment rights, including the right not to be discriminated against and protection against unfair dismissal. Staff members retain these rights when off sick, meaning the law still protects them. 

The situation differs depending on whether an employee takes short-term or long-term sick leave. In both cases, companies must thoroughly investigate absences and consult with the absent employee before deciding whether to terminate their contract. 

Long Term vs Short Term Sickness

Short-term sickness often relates to minor illnesses, such as colds or minor injuries. However, it becomes an issue when a staff member regularly takes time off for such illnesses, causing continuous disruption to the business. In this case, companies should work to identify whether there is an underlying, more serious cause and consider internal disciplinary procedures if appropriate. 

Long-term sickness is commonly treated as an absence for at least four weeks. Employees normally take long periods off work when they suffer from a serious health issue, causing operational problems for the business. Companies should offer a more supportive approach in these situations, ensuring they adequately investigate the condition and make any necessary adjustments. 

While the distinction is important, businesses must follow a correct and fair process in both situations before dismissing an employee.

Equality Act 2010

The Equality Act protects workers with disabilities from discrimination. Section 6 of the Act defines “disabled” as: a physical or mental impairment that has a substantial and long-term negative effect on a person’s ability to perform day-to-day activities. 

“Substantial” means the impairment is more than minor or trivial, while “long-term” means at least twelve months. 

If an employee takes persistent or long-term sick leave, companies should investigate whether their condition amounts to a disability. If it does, they have a duty to make reasonable adjustments so the employee can return to work. For example, a business might offer flexible hours or change equipment to provide an accessible and comfortable workspace. 

Failure to make reasonable adjustments can result in a disability discrimination claim. When a company dismisses a disabled staff member without conducting a proper investigation or making necessary adjustments, the law typically recognises this as automatically unfair and discriminatory. 

Employment Rights Act 1996

The Employment Rights Act protects qualifying employees from unfair dismissal. The Act states that a termination of employment is potentially fair if it relates to:

• The employee’s capabilities or qualifications to carry out their role;
• Their conduct;
• Their redundancy; 
• Breach of statute; or
• Some other substantial reason (‘SORS’).

There is also a set of reasons for termination that are automatically unfair. It is for the employee to allege that their dismissal was for one of those reasons. Where the employee does allege this, the question of who has the burden of proving the real reason for dismissal will depend on whether the employee has sufficient length of service to claim ordinary (non-automatic) unfair dismissal.

When facing an ordinary unfair dismissal claim, the employer must prove that their reason for dismissal was fair. 

Therefore, companies should always obtain all material information and consider alternative options before proceeding with a dismissal. This includes gathering medical evidence, consulting with the employee, and making reasonable adjustments where appropriate for sickness absences. 

SOSR and capability tend to be the most relevant in the context of sick leave. 

Capability

An employee’s sickness may affect their capability to perform their role. For example, someone suffering from long-COVID may be unable to work the same hours as others.

However, an employer cannot dismiss the relevant individual without sufficient investigations into their condition. They should obtain medical evidence to understand the impact on the staff member’s ability to work, seek medical advice on adjustments, and take reasonable steps to implement such measures. 

It is good practice to follow the guidance in Appendix 4 (dealing with absence) of the Acas Discipline and Grievance at work guidance.

SOSR

The Employment Rights Act confirms that an employer may dismiss an employee for some other substantial reason which justifies their termination. SOSR in the context of sickness absence might include a significant disruption to the business or the employee’s refusal to accept reasonable adjustments. 

Companies should still consider alternative options before relying on SOSR as grounds for dismissal. If the employee issues a claim, the employer must be able to prove their reason was substantial and fair. 

Conduct 

A company will likely have a fair reason to terminate someone’s employment if that person is dishonest about their illness. Such dishonesty typically involves pretending to be sick or exaggerating their symptoms. For example, an employee might refuse to provide medical evidence of their condition or be found engaging in activities inconsistent with their sickness. 

An employer should consult with the relevant staff member to understand the situation before terminating their contract. 

Redundancy 

Redundancy doesn’t stem directly from sickness but may arise while an employee is on leave. The employer must demonstrate that the role has become redundant (i.e., unnecessary) and is unrelated to the staff member’s sickness absence. 

Illegality

Sometimes, a staff member’s illness can render their employment illegal. For example, a heavy goods vehicle driver who loses their driving licence can no longer legally carry out that role. 

However, the business must consult with the relevant employee and consider transferring them to a different role at the company before dismissing them.

Dismissal Following Sick Leave: The Correct Process

A company must follow a fair process and have a fair reason when ending someone’s employment. Otherwise, the termination could be deemed unfair and expose the business to a claim. 

What constitutes a fair process depends on whether the absence is short-term or long-term. 

An employer should usually take the following steps for persistent short-term absence:

• Promptly investigate unexpected absences and request an explanation from the employee during a return-to-work interview. If the employee gives no acceptable reasons, the employer may wish to treat this as a conduct issue under their disciplinary procedure.
• Consider whether the employee should be asked to seek a doctor to establish whether treatment is necessary and whether the underlying reason is work-related. If no medical support is forthcoming, the employer should consider whether to take action under their disciplinary procedure. 
• If the absence could be disability-related, the employer should consider what reasonable adjustments could be made.
• The employee should be informed of the expected improvement in attendance and warned of the likely consequences if it does not occur.
• If an initial discussion with the employee does not resolve the matter, it is usually appropriate to start a series of warnings.
• Once a final warning is reached, and no improvement is made, it may be fair to proceed to dismissal if there is no disability, pregnancy/maternity or mental health/stress issues.
• Employees have the right to appeal.

An employer should usually take the following steps for a long-term illness:

Assess the Nature and Duration of the Illness

Management should gather as much information as possible on the illness, prognosis, and expected duration of absence. Acas provides guidance on managing sickness absence, which companies can refer to as well as their internal policies.

Consult a Medical Professional 

Employers should seek medical advice from the employee’s GP or an occupational health specialist. A medical professional can provide input on the employee’s ability to work, which they should write into a formal report. Companies must obtain the staff member’s consent to contact their doctor and request the relevant documents. 

Hold a Welfare Meeting

Employers must consult with the employee. It’s essential to maintain open communications and hold regular meetings to discuss the employee’s recovery, offer support, and provide updates about ongoing investigations. Companies should use welfare meetings to explore adjustments, ensuring that all discussions are recorded in writing. 

Consider Reasonable Adjustments

Employers must consider reasonable adjustments to avoid claims of discrimination. They should speak to the relevant staff member about their needs and explore viable options to help them return to work. 

The law doesn’t expect an employer to make unreasonable changes or meet impractical demands from the employee. If an adjustment means excessive expenditure and disproportionate operational disruption, it’s unlikely to be reasonable. 

Allowances should be made where the absence is the employer’s fault.

Review Alternatives

If reasonable adjustments aren’t possible or appropriate, management should consider alternatives to dismissal. This could include transferring the employee to another role or changing their responsibilities. 

Employers should consider early retirement under their pension scheme (if applicable) and/or their permanent health insurance scheme (if applicable).

Provide Warnings

Companies must inform employees on sick leave that they’re considering dismissal and allow them to respond. All warnings should be in writing and state the nature and extent of the business’s investigations.

Final Meeting

Before making a decision, the employer should hold a final meeting to present their evidence and allow the employee to make representations. They can then make a reasoned decision, which they should document in writing and provide to the employee. 

Offer an Appeal

Employees have the right to appeal an internal dismissal, which their company must notify them of to ensure a fair procedure. The employer should outline the appeal process and direct the employee to relevant resources if they want to challenge the decision. 

Can I Dismiss an Employee Who Is Out Sick Due to Stress?

Absence due to stress can be challenging for companies to manage. Employers should take a sensitive approach to stress leave and acknowledge the potential difficulties that come with diagnosing mental health issues. 

Stress can constitute a disability under the Equality Act 2010 if it falls within the definition in Section 6. Therefore, employers must carefully investigate the causes and offer the relevant employee support. They should also consider reasonable adjustments to the employee’s workload or environment to encourage their return to work. 

Work-related stress can also expose employers to liability, including for breach of their duty of care, unfair dismissal, or constructive dismissal. Companies have a legal duty to provide safe working environments for their staff, which includes protecting them from mental distress. Therefore, dismissing an employee on stress leave should be a last resort and only pursued if the company can rely on a fair reason after exploring all other avenues. 

Frequently Asked Questions

What Is the Longest Sick Note You Can Get?

In the UK, there is no maximum duration for a sick note. The period will depend on the doctor’s assessment of the employee’s condition and what they consider medically appropriate. However, during the first six months of illness, a doctor can only issue sick notes for a maximum of three months at a time. 

What Is the Maximum Days of Sick Leave?

There is no limit on the number of sick days an employee can take per year. However, Statutory Sick Pay (SSP) lasts only 28 weeks within three years, after which an employee may seek alternative benefits, such as Employment and Support Allowance (ESA). Companies may have internal policies which extend SSP or state when a period of sick leave will trigger an investigation. 

Final Thoughts

Managing employee sickness absence, particularly long-term leave, requires careful and sensitive handling by employers. While dismissing an employee on sick leave is possible, businesses must follow a fair and thorough process to minimise legal risks. We can help advise you on whether your process is, or was, fair.

Key steps include obtaining medical evidence, consulting with the employee, considering reasonable adjustments under the Equality Act 2010, and exploring alternative options before dismissal. In cases involving stress-related absences, companies must exercise extra caution to fulfil their obligations regarding employee well-being and disability discrimination.

A failure to follow the correct procedures can expose employers to claims of unfair dismissal or discrimination, resulting in costly legal disputes. Seeking specialist advice early on ensures the business remains compliant while making informed, fair decisions. We can help employers.

If you are managing a complex sickness absence and are unsure of your legal options, contact Helix Law today for expert advice and support. Our specialist employment lawyers will guide you through the process, ensuring you protect your business while minimising disruption.