Dismissal Due to Sickness Absence: How It Is Lawfully Assessed

Sickness absence and dismissal in employment law

Dismissal due to sickness absence is lawful in the UK in certain circumstances, but it is closely regulated. Employers must balance operational needs against employee rights, particularly where illness may amount to a disability under the Equality Act 2010.

Under the Employment Rights Act 1996, dismissal for “capability” is a potentially fair reason, and this includes dismissals based on ill health or ongoing sickness absence. However, tribunals scrutinise whether the employer acted fairly, reasonably, and followed a proper process before dismissal.

This article explains how sickness absence dismissals are lawfully assessed, including medical evidence, reasonable adjustments, procedural fairness, and tribunal decision-making.

What dismissal due to sickness absence means

A dismissal due to sickness absence occurs where an employee is terminated because:

• They are unable to attend work regularly due to illness, or
• Their medical condition prevents them from carrying out their role effectively, or
• Long-term or repeated absences disrupt business operations

This falls under capability dismissal, specifically health capability.

The key legal issue is not whether the employee is genuinely ill, but whether dismissal was a reasonable response in all the circumstances.

Legal framework for sickness absence dismissal

Sickness-related dismissal is assessed under:

• Employment Rights Act 1996 (section 98) – capability as a fair reason
• Equality Act 2010 – if the condition amounts to a disability
• Acas Code of Practice on Disciplinary and Grievance Procedures
• Established case law on fairness and reasonable employer behaviour

Even where sickness absence is genuine, dismissal can still be fair if the employer follows a proper process and considers alternatives.

How employers must lawfully assess sickness absence

Employment tribunals expect employers to follow a structured and evidence-based approach.

1. Obtaining medical evidence

A lawful assessment normally begins with medical information, including:

• GP fit notes
• Occupational health reports
• Specialist medical opinions where appropriate

Employers are expected to understand:

• The nature of the condition
• Likely recovery time
• Whether return to work is realistic
• Whether adjustments could enable return

Failure to obtain adequate medical evidence can make dismissal unfair.

2. Considering the impact on work

Employers must assess:

• Frequency and duration of absences
• Operational impact on the business
• Ability to cover workload
• Whether absence is short-term or long-term

However, inconvenience alone is not sufficient justification. The tribunal expects a balanced assessment.

3. Considering reasonable adjustments

If the employee may be disabled under the Equality Act 2010, the employer must consider reasonable adjustments such as:

• Reduced hours or phased return
• Modified duties
• Workplace adaptations
• Remote or hybrid working
• Alternative roles

Failure to consider adjustments is a common reason for dismissal being found unfair or discriminatory.

4. Consultation with the employee

A fair process requires meaningful consultation, including:

• Meetings to discuss medical position
• Opportunities for the employee to provide input
• Discussion of return-to-work prospects
• Consideration of alternatives to dismissal

Tribunals expect dismissal to be a last resort, not a first response.

5. Waiting a reasonable period

Employers must allow a reasonable time for recovery, depending on:

• Length of service
• Medical prognosis
• Likelihood of return
• Business needs

Premature dismissal is often found unfair.

When dismissal due to sickness absence may be fair

Dismissal is more likely to be lawful where:

• The employee has been absent for a prolonged period
• Medical evidence shows no realistic prospect of return
• Adjustments would not enable return to work
• The employer has followed a fair procedure
• The impact on the business is significant and ongoing

Even then, fairness depends on the overall circumstances.

When sickness absence dismissal is likely to be unfair

A tribunal may find dismissal unfair where:

• No occupational health or medical evidence was obtained
• The employer ignored medical advice
• No reasonable adjustments were considered
• The employee was not consulted properly
• Dismissal occurred too early in the absence period
• The process lacked warning or structure

If disability discrimination is involved, dismissal may also be unlawful under the Equality Act 2010.

Disability and sickness absence: additional legal protection

Where sickness absence relates to a disability:

• Employers must make reasonable adjustments
• Less favourable treatment may amount to discrimination
• Dismissal must be objectively justified

Common conditions that may qualify include:

• Long-term mental health conditions
• Chronic illnesses
• Physical impairments with long-term impact

Each case depends on medical evidence and legal definition of disability.

Procedure for fair sickness absence dismissal

A fair process typically includes:

• Absence monitoring and review meetings
• Occupational health assessment
• Written warnings where appropriate
• Opportunity for employee representation
• Consideration of alternatives (redeployment, adjustments)
• Final dismissal meeting with clear reasoning
• Right of appeal

Failure in procedure is one of the most common grounds for unfair dismissal claims.

Legal test used by employment tribunals

Tribunals apply the “range of reasonable responses” test, asking:

• Could a reasonable employer have dismissed in these circumstances?
• Was dismissal proportionate?
• Was the decision based on sufficient evidence?
• Was a fair process followed?

The tribunal does not decide what it would have done, but whether the employer acted reasonably.

Time limits for making a claim

If an employee believes their sickness absence dismissal was unfair:

• A claim must be brought within 3 months less 1 day of dismissal
• Acas Early Conciliation must be completed first

Strict time limits apply regardless of the merits of the case.

Remedies for unfair sickness dismissal

If a tribunal finds dismissal unfair, remedies may include:

• Basic award based on age and service
• Compensatory award for lost earnings
• Adjustments for contributory conduct or mitigation
• Reinstatement or re-engagement in limited cases

Compensation depends on financial loss and tribunal findings on fairness.

Practical summary

Dismissal due to sickness absence is lawful only where it is based on a fair capability assessment supported by medical evidence, proper consultation, and consideration of reasonable adjustments. Employers must treat dismissal as a last resort after exploring alternatives. Tribunals closely examine medical evidence, process fairness, and compliance with disability discrimination law when assessing whether such dismissals are lawful.