Dismissal due to sickness

Long-term or frequent sickness absence can be a fair reason for dismissal. Most commonly, the statutory reason for dismissal will be capability. However, in Wilson v Post Office ([2000] IRLR 834), the Court of Appeal held that an employee could be fairly dismissed for “some other substantial reason” when attendance fell below the level required by an agreed attendance procedure (see Chapter 10: Fair reasons for dismissal).

It is important to note that even where a negotiated absence procedure is in place, employers must still investigate all the circumstances surrounding the absence, including the underlying reason for each absence, and give the employee an opportunity to explain the position. A dismissal will not be fair just because the employee has breached the terms of an agreed absence procedure.

The fact that an employee’s absence is due to an accident, having been a victim of a crime, or even a work-related injury does not mean they cannot be fairly dismissed as a result of sickness absence. In every case, the employer must act fairly applying the reasonableness test in section 98(4) ERA 1996 (See Chapter 10). However, the employer should take into account the cause of the illness when deciding whether to dismiss (Frewin v Consignia EAT/0981/02). In particular, if the injury or illness causing the absence is work-related, an employer should not dismiss without first investigating all the alternative ways of avoiding the dismissal, described by the Court of Appeal as “going the extra mile” (See McAdie v Royal Bank of Scotland [2007] EWCA Civ 806).

Where an employee is entitled to an enhanced pension for early retirement on grounds of ill-health, the employer should consider this as an alternative to dismissal (First West Yorkshire Ltd t/a First Leeds v Haigh [2008] IRLR 182).

In all cases, any dismissal due to sickness or injury must be reasonable in all the circumstances (Section 98 (4) ERA 96). Tribunals will take into account factors such as the size and resources of the employer, difficulties in arranging for short-term replacements, the importance of the role, the employee’s length of service, previous attendance record, the nature of the illness and whether, taking all things into account, the decision to dismiss was one a “reasonable” employer would have taken. The steps an employer must take before dismissal depend on individual circumstances, but should normally include:

• investigating the reasons for the sickness absence. This will nearly always include seeking expert medical guidance (with the employee’s consent), looking at the employee’s condition and prognosis, the likelihood of a successful return and any steps the employer could reasonably take to facilitate that return;

• consulting the employee;

• looking at alternative work; and

• warning the employee that continued or further absence may result in dismissal.

Dismissing an employee without consultation is likely to make the dismissal unfair (East Lindsey District Council v Daubney [1977] IRLR 181).

Where there is a sickness absence policy providing guidance on how absences should be dealt with, the employer should follow it. A sickness absence procedure is unlikely to be contractual. Nevertheless, an unreasonable failure to follow it is likely to make a dismissal unfair.

An employee can be dismissed even if they have a current medical certificate and are still receiving sick pay.

An employer is obliged to take steps to discover the true medical position before dismissing, and it will nearly always amount to unfair dismissal if an employer does not do this. However, the overriding principle is one of reasonableness, so a failure to consult with the employee’s GP is not an absolute guarantee that any resulting dismissal will be unfair.

There is no duty on the employee to inform the employer of the prospects of recovery (Mitchell v Arkwood Plastics [1993] ICR 471; Perry v Imperial College Healthcare NHS Trust [2011] UKEAT/0473/10). However, in practice it will be much harder to dismiss for ill health if the employee keeps the employer updated, and is positive about the prospects for return to work as soon as they are fit and well.

It is sensible to cooperate with the employer’s attempts to discover the medical position. A failure to cooperate that is judged “unreasonable”, for example refusal to attend a medical examination by a company doctor, can result in lost sick pay and may also lead to the employer carrying out a fair dismissal on the basis of the information available.

Depending what the contract says, refusing to attend a medical examination may also be a breach of an express term of the employment contract. Appendix 4 to the Acas Guidance on Discipline and Grievance at Work: Dealing with Absence contains some helpful guidance.

An employee wanting to claim unfair dismissal for sickness absence must have enough continuous employment (two years since 6 April 2012). See Chapter 10 for more details. No service is required for a claim of disability discrimination.