Long-term sickness absence




The fact that an employee’s long-term sickness 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 an 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 an employee is disabled, reasonable adjustments must be made (see page 231).




In First West Yorkshire Ltd t/a First Leeds v Haigh [2008] IRLR 182, an employee off sick qualified for an enhanced ill health early retirement pension but instead, his employer dismissed him. The tribunal ruled that on the facts of this particular case, it was unfair to dismiss without first considering early retirement.




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



• investigating the reasons for the absence. This will usually involve obtaining expert medical guidance with the employee’s consent (see page 287), 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;



• balancing the practical impact of the continued absence for the organisation, its customers and staff; 




• consulting the employee;




• investigating what alternative work is available; 




• warning the employee clearly and in writing at least once that continued or further absence may result in dismissal;



• allowing the employee to be accompanied to the meeting (see page 362); and



• allowing an appeal from the decision to dismiss. 




The obligation is to carry out “such medical investigations as are sensible in all the circumstances”, ensuring 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 following up with the GP any inconsistencies in the report if necessary.


Where an employee is disabled, reasonable adjustments must be made to the dismissal process, for example meeting arrangements, such as timing, venue, extra breaks, and adjustments to the right to be accompanied, for example allowing a family member or disability support worker to accompany the worker.



Dismissing an employee without consultation, or a clear warning that further absence is likely to result in dismissal, will almost certainly be unfair (East Lindsey District Council v Daubney [1977] IRLR 181).



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 nature of the illness and prognosis for recovery and return to work;


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




• difficulties organising work and arranging for short-term replacements;




• Genuine evidence of a negative impact on the workload of colleagues;




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




• length of service; and




• previous attendance record (and what this suggests as to the likelihood of recurrence).



The basic test is always: “how long would a reasonable employer in this situation wait before deciding to dismiss?” (Spencer v Paragon Wallpapers [1977] ICR 301, BS v Dundee City Council [2013] CSIH 91). The emphasis should “future-focused”, in other words, looking at the employer’s ability to cope with future absences. Where an employee can show that they are fully recovered and fit for work by the date of the dismissal hearing, there is a good chance that a dismissal on grounds of ill-health will be unfair even though the absence has been long-term and the employer has struggled to cope with it (see, for example, O'Brien v Bolton St Catherine's Academy [2017] EWCA Civ 145).



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, failure to follow it may result in breach of implied duties of 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. 




The Acas Code of Practice on Discipline and Grievance does not apply to ill-health (capability) dismissals that relate purely to the question whether or not an employee is too sick or injured to be able to do their job (Holmes v Qinetiq Limited [2016] UKEAT/0206/15/BA). 


The Acas Code does apply to an ill-health dismissal that includes allegations of culpable conduct, for example that the sickness is not genuine, or that the employee is fraudulently claiming sick pay.



Employees are not obliged to keep their employer informed as to their recovery prospects (Mitchell v Arkwood Plastics [1993] ICR 471). Even so, 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 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. Any 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, relying on the available information. Sometimes the written contract requires the employee to comply with reasonable requests to attend a medical examination, in which case an unreasonable refusal to attend would be a breach of contract.



Employers owe a common law duty of reasonable care to the employee and occasionally, there is a genuine risk that returning to work could exacerbate the injury or ill-health, making the employee’s condition worse. In this kind of case, the employer must base any decision on expert medical reports (DB Schenker Rail (UK) Limited v Doolan [2011] UKEATS/0053/09/B1) in full consultation with the employee. Where the employee's medical condition has organisational causes (for example a mental health condition linked to work overload), the employer’s focus should be on fixing those organisational causes, rather than on the individual’s ability to cope with them. The Health and Safety Management Standards on Workplace Stress are useful here — see page 286.


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