Sickness absence and disability

It is not the law that an employer can never dismiss a disabled employee for disability-related sickness absence linked to work-related stress or depression. Instead, the dismissal of a disabled employee for sickness absence can be lawful if the employer can show that the dismissal is objectively justified as a proportionate (i.e. reasonable) response. The employer also has a defence if they did not know, and could not reasonably be expected to know, that the employee was disabled (section 15, EA 10).

The dismissal of a disabled employee is unlikely to be justified if, at the dismissal date, there were still reasonable adjustments that the employer could have made that would have stood a good chance of keeping that employee in work.