Can you dismiss someone for being off sick

For example, an employee may have a history of short-term absences consisting of a series of minor unconnected ailments such as colds and stomach upsets or recurring conditions, like back problems or respiratory complaints. Alternatively, an employee may have ongoing absence caused by a long-term injury or illness, for example a stress related condition. Can I be sacked for being off sick with depression? An employee who has been employed for at least two years is protected against being unfair dismissal, and can bring a claim in the employment tribunal to enforce such protection if they are fired for being off sick.

Capability, i. Where absences are for unconnected health reasons rather than an underlying condition , the employer may dismiss for some other substantial reason SOSR. An employment tribunal will go on to consider whether the employer acted within the range of reasonable responses in deciding to dismiss the employee at that time. While there will come a point at which an employer is entitled to take action, it must still have given adequate warning to the employee that dismissal was a possible outcome if attendance did not improve.

The ACAS Code on disciplinary and grievance procedures does not apply to capability dismissals for ill-health. However, this does not mean that an employer is excused from going through a procedure prior to dismissal.

In cases of long-term ill health an employer should obtain an up-to-date medical report to establish the likely prognosis for the individual and whether any improvement might be expected in the short to medium term. An employer must also investigate, ideally in consultation with the employee, whether any adjustments might be made to assist the employee in returning to work.

The employer must ensure that it consults adequately with the employee and gives them the chance to make representations to it. Importantly, s etting out your expectations will allows genuinel y sick employees to know they will be supported during their absence and malingerers that you can — and will — take disciplinary action. Your sickness absence policy should set benchmarks, known as trigger points , for unacceptable levels of short and frequent sickness absence. These should be reasonable, and using the Bradford Factor formula will help you to determine when short-term absence levels have become excessive.

It should also establish what actions will be taken once those triggers have been met. This will help you and your managers to understand what steps to take when a member of your team is off sick. Monitoring and recording each absence and the reason for it can be prove useful in uncovering trends or patterns. Equally, you may notice that employees who carry out particular tasks are often absent for similar reasons, for example back pain, or that many of the employees who are taking frequent short-term absences have challenging deadlines and intense workloads.

Spotting trends will point you in the right direction and enable you to take the right course of action to rectify the problem. Holding return to work interviews will allow you to probe into the reasons behind absences and is an effective way to deter sickies.

Proactively following up on absences will signal to employees that their absences have been monitored, that their manager is recognising specific trends, and that disciplinary action may be taken against them if absences are found to be illegitimate.

Depending on what is discussed in the return to work interview, it may be possible to identify simple solutions to reduce persistent short-term absences. In some cases, it may be necessary to take formal action in relation to sickness absence. This would be warranted if:. Be careful if making allegations against an employee without clear evidence.

Subsequently, if they have been employed for more than two years, they could claim constructive dismissal. However, an employee calling in sick and then posting pictures of themselves on Facebook enjoying the sunshine or at an event is a whole other matter and should be dealt with as a disciplinary issue.

The sanctions imposed will be determined by the facts but could potentially include dismissal without notice. The employee has the right to be accompanied by a colleague or trade union representative. This is an opportunity for the employee to explain their absences. Depending on this medical evidence and what the meeting has revealed, you may decide to issue a warning. You must clearly explain to the employee what level of attendance is expected and set clear improvement targets and timescales in which to achieve them.

Dismissal because of a disability may be unlawful discrimination. Redundancy Redundancy is a form of dismissal and is fair in most cases. Print entire guide. Related content Make a claim to an employment tribunal Raise a grievance at work Redundancy: your rights Taking sick leave.

Brexit Check what you need to do. Explore the topic Redundancies, dismissals and disciplinaries. Is this page useful? Maybe Yes this page is useful No this page is not useful. If your employer dismisses you they must have a fair reason for their action, for example because of your conduct at work. Find out more about fair reasons for dismissal, and your employment rights should you be dismissed. If your employer has dismissed you because of your conduct, it usually means you have broken one or more of the terms of your employment.

For example:. If your employer has dismissed you for your capability it may mean that you aren't performing to the required standard or that you can't do your job properly. Your employer should make sure you are given adequate training to do your job. If you are performing poorly, you should usually be warned that your work isn't satisfactory and be given a chance to improve before any action is taken. If you are persistently off sick, or on long-term sick, your employer should normally look at any alternatives before deciding to dismiss you.

For example, they might have to consider whether the job itself is making you sick and needs to be changed. Your employer would normally be expected to allow a reasonable amount of time for you to recover from your illness. The actual amount will depend on things like:. If you have a disability which may include long-term illness , your employer has a legal duty to try to find a way round the problem.

Dismissal because of a disability may be unlawful discrimination. Redundancy is dismissal from your job, caused by your employer needing to reduce the workforce. Reasons could include:.