Can You Be Sacked While Off Sick in the UK?

Dealing with a serious illness or injury can result in a very stressful time, especially those who are forced into taking time off work, left with the possibility of losing their job. 

Lawfully, employers can dismiss an employee despite them being off sick with the claims that a persistent illness or injury can make it impossible to do their job and to be able to keep up with the necessary workload expected of an employee. However, an employer is expected to look for ways to support and sick or injured employee and to give them reasonable time to recover from illness before taking any action as stated by the United Kingdom government.  

This reality disproves the common misconception that a valid reason to call in sick can act as an absolute shield against dismissal. The law of UK employment is more nuanced as it values the health of employees whilst also recognising that a business must be able to fulfil its needs. The balance between the needs of the employer and the needs of the employee can result in cases where the lines are blurred and both parties present valid points however a greater understanding of the law which cover situations like these must be obtained to understand what is and isn’t acceptable.

The laws behind dismissal while off sick in the UK

To answer the main question at hand, yes, an employer could dismiss and employee, even if they are off sick. However, there are limits to the circumstances under which this can occur. For example, an employer is unable to sack an employee simply because they are annoyed that they had to call off sick. Likewise, an employee is unable to claim that they should not have been fired even if they have sustained an injury or an illness which makes it impossible for them to fulfil their role at their work due to long-term medical incapacity.

There are five fair reasons of dismissal stated by the Employment Rights Acts 1996 and one of these reasons is lack of capability to perform one’s job which includes aspect such as health, physical capability or mental state which may be required in one’s field of work. Although this is the case, an employer is required to follow a strict procedure which must demonstrate that the employer has acted reasonably in the situation at hand, has consulted the employee in finding any reasonable alternatives and investigating the medical condition in depth before finally resulting in the dismissal of the employee.

These laws also separate long-term illnesses and short-term illnesses distinctively. In the eyes of the law, short term illnesses are assessed through behavioural patterns such as regular sick days and can be susceptible to disciplinary actions if the absences are deemed unsustainable. On the other hand, long-term illnesses assess the capability of the employee in question and focus on whether they will be able to perform their jobs after having recovered from their injury. However, there is a fixed time limit on the time that an employee is able to take off work as sick employees have the right to sick pay.

Employees who are unable to work due to serious illness or injury can get up to £123.25 per week which is paid by one’s employer, however this is limited to 28 weeks. Beyond this time, either you are unable to receive Statutory Sick Pay, or an employer may deem you unable to work for their company beyond this point. Furthermore, being in this situation can leave an employee more vulnerable to the possibility of being selected for redundancy in which a company cuts down its work force which requires employees to be dismissed. This is also considered a fair dismissal and can be the reason for dismissal for those who are off work sick as they may be deemed less useful to the company than others.

Protection against dismissal while off sick in the UK

The single most effective protection against dismissal while sick in the UK is the Equality Act 2010. Under this act, employees are protected from being dismissed from their jobs as their physical or mental illness can be considered a disability. If this is the case, dismissal would be considered discrimination and would be considered unfair dismissal. Under the Equality Act, a person is considered disabled if they have an impairment that is substantial and expected to last for more than a year.

If an employee’s illness falls under both categories, an employer is required to steer clear of dismissal and to make necessary adjustments for the employee such as modified work hours or expected responsibilities.

In cases where there is a disagreement between an employer and an employee with an illness, the outcome will most likely be a decided by the medical evidence presented which is why it may be advised to seek robust medical evidence for a long-term injury to act as protection against illness dismissal. The medical evidence provided must not have gaps in medical certificates, must clearly state the diagnosis given by a qualified expert and must detail adjustments that can be made.

If you require expert legal advice or support with any aspect of your matter, our experienced team of solicitors at Aston Bond are here to help. We are committed to providing clear, practical and tailored legal solutions to help you move forward with confidence. Contact our team today on 01753 486 777 or email info@astonbond.co.uk to discuss how we can assist you.