Dismissal due to long-term sickness absence


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 due to sickness absence. However, the employer should take into account the cause of any illness or injury when deciding whether to dismiss (Frewin v Consignia EAT/0981/02). 


If the illness or injury is work-related, the employer should not dismiss without first investigating all alternative ways of avoiding dismissal, described by the Court of Appeal as “going the extra mile” (McAdie v Royal Bank of Scotland [2007] EWCA Civ. 806). Where the employee is disabled, reasonable adjustments must be made (see above).


In First West Yorkshire Ltd t/a First Leeds v Haigh [2008] IRLR 182, the employee off sick qualified for an enhanced early retirement pension on grounds of ill-health but instead, his employer dismissed him. The tribunal ruled that on the facts of this case, the employer should have considered early retirement, before deciding to dismiss. The dismissal was unfair.


The steps an employer must take before dismissal for long-term sickness absence will depend on individual circumstances, but normally include:


• investigating the reasons for the absence. This will nearly always include seeking expert medical guidance with the employee’s consent (see page 280), looking at the employee’s condition and prognosis, the likelihood of a successful return and any steps the employer could reasonably take to support that return; 


• consulting the employee;


• investigating what alternative work is available; and


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


In future, the new Fit for Work Service may have a role in the assessment of whether or not a dismissal for sickness absence is fair (see page 263). It may be unreasonable in some cases for an employer to dismiss an employee without having engaged with the new service. Conversely, even though the service is intended to be voluntary for both parties, an employee who refuses a referral, or who refuses to allow the employer access to a report produced by the service may increase the likelihood of a fair dismissal for capability. 


Dismissing an employee without consultation is likely to be unfair (East Lindsey District Council v Daubney [1977] IRLR 181). So is dismissing without a clear written warning that further absence is likely to result in dismissal. Any dismissal for sickness or injury must be reasonable in all the circumstances, applying the standard principles of unfair dismissal law explained in Chapter 10 (Section 98(4), ERA 96). Tribunals take into account factors such as:


• the employer’s size and resources, including, for publicly funded roles, the need to safeguard public funds;


• difficulties arranging for short-term replacements;


• stress and extra work for colleagues;


• the importance of the role and the difficulty finding a replacement;


• the absent employee’s length of service;


• their previous attendance record; and


• the nature of the illness and prognosis for recovery and return to work.


The key question is always: “how long would a reasonable employer in this situation have waited before deciding to dismiss?” (Spencer v Paragon Wallpapers [1977] ICR 301, BS v Dundee City Council [2013] CSIH 91).


Where there is a sickness absence procedure, the employer should follow it. Unreasonable failure to do this can make the dismissal unfair, even if the procedure is not contractual. It may also result in a breach of the duty of mutual trust and confidence and good faith (see Chapter 3). 


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


As explained above, employers must take reasonable steps to discover the true medical position before dismissing. The obligation is to carry out “such medical investigations as are sensible in all the circumstances”. However, this will not necessarily mean a detailed medical examination. All that the employer needs to do is to “ensure that the correct question is asked and answered“ (BS v Dundee City Council [2013] CSIH 91). This usually involves at least consulting the member’s GP, and in future, may involve interaction with the Fit for Work Service.


Employees are not obliged to keep their employer informed as to their recovery prospects (Mitchell v Arkwood Plastics [1993] ICR 471). However, an employee’s own views as to their prospects for a successful return are likely to be highly relevant when it comes to deciding whether a decision to dismiss was fair. It is much harder for an employer to dismiss fairly for ill-health where a member has kept their employer updated about their recovery and is positive about their prospects for a successful return to work in the foreseeable future. Here is a good illustration: 


It is sensible to cooperate with an employer’s reasonable attempts to discover the medical position. An unreasonable failure to cooperate, for example, refusing to attend a medical examination by a company doctor for no good reason, can result in lost sick pay and may enable the employer to dismiss fairly, based on whatever information they have available. Sometimes the contract includes an express term requiring employees to comply with reasonable requests to attend a medical examination, in which case an unreasonable refusal to attend would be a breach of contract. 


A claim for unfair dismissal due to sickness or sickness absence requires at least two years’ continuous service. See Chapter 10. No service is needed for a claim of disability discrimination.