What Are Rights During Sickness Absence Dismissal?

Dismissal during or following a period of sickness absence is governed by a combination of statutory employment rights and procedural fairness requirements in England and Wales. Employers are permitted to dismiss an employee who is unfit for work, but only where a fair process is followed and the decision is reasonable in the circumstances.

Under the Employment Rights Act 1996, sickness-related dismissals are usually assessed under the “capability” ground for dismissal. However, additional legal protections may apply, particularly where the illness amounts to a disability under the Equality Act 2010 or where proper procedures have not been followed.

This article explains employee rights during sickness absence dismissal, including legal protections, employer obligations, tribunal considerations, and potential claims.

Legal Framework Governing Sickness Absence Dismissals

Sickness-related dismissals are primarily assessed under:

• Employment Rights Act 1996 (section 98 – capability and fairness of dismissal)
• Equality Act 2010 (disability discrimination protections)
• ACAS Code of Practice on Disciplinary and Grievance Procedures
• Common law principles of fairness and reasonableness

Employers must show both a valid reason and a fair process before dismissal is lawful.

Right Not to Be Unfairly Dismissed

Employees with qualifying service (normally two years) have the right not to be unfairly dismissed.

In sickness absence cases, employers must demonstrate:

• The employee's capability to perform the job was affected by illness
• A reasonable assessment of medical evidence was carried out
• A fair process was followed before dismissal
• Dismissal was a reasonable response in the circumstances

Tribunals assess whether dismissal fell within the “range of reasonable responses” open to a reasonable employer.

Right to a Fair Capability Procedure

Before dismissing an employee due to sickness absence, employers are expected to follow a fair capability process.

This generally includes:

• Obtaining up-to-date medical evidence (often from occupational health)
• Consulting with the employee about their condition
• Considering reasonable adjustments
• Reviewing absence levels and likely return-to-work prospects
• Issuing warnings where appropriate

Failure to follow a fair procedure can render a dismissal unfair even if illness is genuine.

Right to Medical Evidence Being Properly Considered

Employees have the right for their medical condition to be properly assessed before dismissal decisions are made.

This typically involves:

• Occupational health reports
• GP fit notes (“fit notes”)
• Specialist medical evidence where relevant

Employers must not dismiss based on assumptions and must consider:

• Prognosis for recovery
• Likelihood of return to work
• Whether adjustments could enable continued employment

Ignoring medical evidence is a common basis for unfair dismissal claims.

Right to Reasonable Adjustments (Disability Cases)

If an employee's illness meets the definition of a disability under the Equality Act 2010, they are entitled to reasonable adjustments.

Examples include:

• Adjusted working hours
• Modified duties
• Phased return to work
• Workplace adaptations
• Remote working arrangements

Failure to make reasonable adjustments can amount to disability discrimination and make dismissal unlawful.

Protection from Disability Discrimination

Where sickness amounts to a disability, employees are protected from:

• Direct discrimination
• Indirect discrimination
• Discrimination arising from disability
• Failure to make reasonable adjustments
• Harassment linked to disability

A dismissal linked to disability-related absence may be unlawful unless it can be objectively justified.

Right to Be Consulted Before Dismissal

Employees have a right to meaningful consultation before dismissal.

This includes:

• Being informed of concerns about their attendance or health
• Being given the opportunity to respond
• Discussing alternative roles or adjustments
• Participating in capability review meetings

A lack of consultation is often considered procedurally unfair.

Right to Alternative Employment Consideration

Before dismissal, employers are generally expected to consider:

• Suitable alternative roles within the organisation
• Adjustments to existing duties
• Temporary redeployment
• Reduced hours or phased return

Failure to explore alternatives may weaken the fairness of a dismissal decision.

Right to Notice Pay or Statutory Entitlements

Even where dismissal is lawful, employees may be entitled to:

• Statutory notice pay or contractual notice pay
• Outstanding holiday pay
• Statutory sick pay (SSP), if eligible
• Accrued employment benefits

Dismissal does not remove entitlement to lawful payments already earned.

Right to a Fair Appeal Process

Employees have the right to challenge a dismissal decision through an appeal process.

A fair appeal should:

• Be heard by an independent decision-maker
• Reconsider the medical and procedural evidence
• Allow the employee to present new information if relevant
• Provide a reasoned outcome

Failure to provide a proper appeal process can contribute to a finding of unfair dismissal.

Time Limits for Bringing Claims

Claims related to sickness absence dismissal must be brought within strict time limits:

• Three months less one day from the effective date of termination
• ACAS Early Conciliation must be completed before submitting a tribunal claim

Missing these deadlines usually prevents a claim from proceeding.

Constructive Dismissal in Sickness Cases

Employees may resign and claim constructive dismissal if:

• The employer's conduct becomes unreasonable or oppressive
• Reasonable adjustments are refused (in disability cases)
• Medical evidence is ignored
• Pressure is applied to return to work prematurely

The employee must show a fundamental breach of contract by the employer.

Common Employer Justifications for Sickness Dismissal

Employers often rely on:

• Long-term inability to return to work
• Unacceptable levels of absence affecting business operations
• Medical evidence suggesting no foreseeable return
• Capability-based dismissal after failed adjustments

However, these must still be supported by a fair process and evidence.

Evidence Used in Tribunal Cases

Employment Tribunals typically consider:

• Occupational health reports
• GP fit notes and medical records
• Attendance records
• Capability meeting notes
• Emails and HR correspondence
• Evidence of adjustments considered or implemented

The quality of documentation is often decisive in determining fairness.

Common Procedural Failures in Sickness Dismissals

Frequent errors include:

• Dismissing without up-to-date medical evidence
• Failing to consult the employee
• Ignoring reasonable adjustments
• Rushing the dismissal decision
• Not offering an appeal
• Treating absence levels as automatically dismissible

Such failures often lead to findings of unfair dismissal.

Key Takeaways

Employees have significant rights during sickness absence dismissal, including protection from unfair dismissal, entitlement to a fair capability process, consultation rights, and in some cases protection under disability discrimination law. Employers must carefully assess medical evidence, consider reasonable adjustments, and follow a fair procedure before deciding to dismiss.

Tribunals place strong emphasis on procedural fairness, medical evidence, and whether dismissal was a reasonable response to the employee's condition. Failure to meet these standards can result in findings of unfair or unlawful dismissal.