Can my employer dismiss me because I’m always taking sick leave?

sick

Short-term absence with a medical condition

There are four categories of absence from work. These are when;

  1. You don’t turn up at work or tell anyone that you are not coming in.
  2. You are away from work without permission (HR calls this unauthorised absence).
  3. You have permission to be away from work repeatedly (HR calls this authorised short-term absence with or without a medical condition).
  4. You have permission to be away from work for a long time (HR calls this long-term absence).

You have an obligation under your employment contract to turn up for work. If you are not able to do so for whatever reason, your employer will treat your absence as a failure to meet your contractual obligations.  Your absence from work here could be due to a chronic health condition or a number of unrelated illnesses.   Where you have frequent short-term absences because you are ill, your employer will usually address this under the absence or sick leave policy and procedure. Your employer CAN dismiss you for your sickness absence if it starts affecting the business and your ability to do your job.

 

See Employee Rescue resources on facing disciplinary action, and capability

 

Use the Personal Workplace Absence Tracker

 

 

Resources available

How to write a grievance that gets you what you want

How to write a grievance about bullying and harassment at work

How to write a grievance about changes to your employment contract

How to write a grievance about discrimination at work

How to write a grievance about the behaviour of a colleague, manager or supervisor

How to write a grievance about unauthorised deductions from your wages or salary

Surviving a workplace suspension

How to fight dismissal on Probation

How to survive a criminal charge, conviction or caution at work

Social Media and Unfair Dismissal

Surviving a disciplinary investigation at work

Surviving Capability and Performance Management

The Disciplinary Hearing

Alcohol and Drugs at work

 

DOCUMENTS, FORMS AND LETTER TEMPLATES

The ACAS Code of Practice and Guidance on disciplinary and grievance procedures

The ACAS Code of Practice does not specifically mention sickness dismissals, but this does not mean that it does not apply. The Code says that whenever a disciplinary process is being followed it is important to deal with issues fairly. Fairness means that your employer should;

  • raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions
  • act consistently
  • carry out any necessary investigations, to establish the facts of the case
  • inform you of the basis of the problem and give you an opportunity to put your case in response before any decisions are made
  • allow you to be accompanied to any formal disciplinary meetings
  • allow you to appeal against any formal decision that is made

The ACAS Guide on Discipline and Grievances at work covers ill-health dismissals at Appendix 4 (page 71). The guide says that; 

  • unexpected absences should be investigated promptly and you should be asked for an explanation at a return-to-work interview
  • if there are no acceptable reasons, then your employer can treat the matter as a conduct issue and deal with it under the disciplinary procedure
  • where there is no medical certificate to support frequent, short-term, self-certified absences, then you should be asked to see a doctor to establish whether treatment is necessary and whether the underlying reason for your absence is work-related. If no medical support is forthcoming, your employer should consider whether to take action under the disciplinary procedure
  • if your absence could be disability-related, your employer should consider what reasonable adjustments could be made in the workplace to help you. Reasonable adjustments also mean redeployment to a different type of work if necessary
  • if the absence is because of temporary problems relating to dependants, you may be entitled to have time off under the provisions of the ERA 1996 relating to time off for dependants
  • if the absence is because you are having difficulties in managing both work and home responsibilities, then your employer should give serious consideration to more flexible ways of working. Employees with young and disabled children or caring responsibilities have the right to request flexible working arrangements, including job-sharing, part-time working, flexi-time, working from home/teleworking and school-time contracts. Your employer must have a good business reason for rejecting your flexible working application. 
  • you should be told what improvement in your attendance is expected, and warned of the likely consequences if this does not happen
  • if there is no improvement, factors that your employer should take into account in deciding appropriate action are;

your length of service

your performance to date

the likelihood of a change in performance

the availability of suitable alternative work where appropriate, and

the effect of past and future absences on the organisation

 

What you should do about your frequent sickness absence

Be very clear on the reasons for your frequent absences and keep your employer informed. Consider whether your illness is related to conditions at work such as stress, bullying and harassment or some other health and safety reason. Do not wait until you are facing capability or disciplinary proceedings before taking action. You must take advice from Employee Rescue as soon as possible.

 

Stick to the letter of your employer’s absence/sick leave policy and keep your employer informed

Most employers have a sickness absence policy and procedure which tells you how sickness will be treated and the how much sickness absence will be allowed before formal action is taken. If there is no sickness or absence policy at your workplace, then find out how your employer has previously treated sickness absence in the workplace and use the information and resources here as a guide.

Keep your own sickness record

Keep your own record of your sickness absences. You don’t want to be hauled up before management and then have to remember how often you have been sick, and for what reason. Keeping a diary of your sickness absence also allows you to investigate your own pattern of sickness absence, understand it and put steps in place to address it. If its because of problems at home, be upfront and confide in your employer. Just get a notebook and record date, length of time off, reason for time off, who you informed of your illness and whether or not you saw a doctor or some other health professional, or went to hospital. Take a look at the ACAS Absence Record Sheet and use it as a template for your own. Of course if your absences coincide with football games, or are always after a heavy night out, then you need to sort yourself out pronto!

Sickness and disability 

Depending on the facts and the results of a medical report, a chronic illness could be seen as a disability, or your absences could be because of a pre-existing condition. The Equality Act 2010 defines disability as a physical or mental impairment that has a substantial and long term adverse effect on a person’s ability to carry out normal daily activities. This includes people with hidden disabilities such as diabetes, epilepsy, or mental health illnesses. It also covers past disabilities. If you have cancer, HIV or MS you are automatically covered by the Act. If your employer subjects you to a detriment, or dismisses you for reasons related to sickness under this head, it will be an unfair dismissal and you will have a claim in the Employment Tribunal. Take a look at Employee Rescue resources on Occupational Illnesses, Stress at work, Health and Safety at work, Discrimination at work as well as Personal Injury and contact Employee Rescue for advice.

Meetings with management

Your employer will want to know the reasons for your absence and will invite you to a meeting to discuss this. This is sometimes called a “return to work” meeting. It is a fact-finding meeting and should not mean that disciplinary action is being taken against you. You have the right to be accompanied to any meeting that could result in decisions being made which could affect your employment. Make sure that you are clear on the reason for the meeting, and that your employer simply wants to know what is going on with you. Take your personal sickness record with you and make sure that it matches with your employer’s records. Take this opportunity to discuss any work related problems that are causing your illness. Ask for a copy of the notes of the meeting, but make sure that you take your own notes during the meeting as well. Beware that a very understanding employer can suddenly switch to being an employer who wants to dismiss you. Check the sickness absence policy for the level of absence which will trigger an escalation and be prepared when your absence begins to reach the trigger point. Contact Employee Rescue for advice.  

 

Medical Reports

Sickness absence falls under capability, which is one of the potentially fair reasons for dismissing an employee. Before your employer can dismiss you for capability, they must find out the actual state of your health by getting a medical report from your GP, Consultant, medical practitioner or occupational health service nominated by your employer. Your employer will need your consent to get the medical report. A medical report is not usually required for frequent short-term sickness absence which is due to unrelated illnesses, but it may be required for chronic illnesses. You have a right to see the medical report before it goes to your employer under the Access to Medical Reports Act 1988. You can correct any errors, or withhold your consent to your employer receiving it.  Your medical information is sensitive personal data under the Data Protection Act 1998 and should be treated accordingly. Its a good idea to let your employer have the medical report because they can go ahead and make a decision without the medical report if you refuse. See Employee Rescue resources on Privacy at Work.

Unfair Dismissal – Ill health capability

Your employer can dismiss you for sickness absence. S98 (2)(a) Employment Rights Act 1996 makes capability a potentially fair reason for dismissing an employee and absence from work falls under “capability”.  Every dismissal has to be for a potentially fair reason under s.98 of the Employment Rights Act 1996 (ERA). The potentially fair reasons for sickness absence dismissal are;

  1. Conduct – s.98(2)(b) Employment Rights Act 1996 for example where your absence is persistent and unauthorised, or you lie about being sick.
  2. Capability – s.98(2)(a) Employment Rights Act 1996 for example where your long or frequent absences affect your ability to do your job.
  3. Some other substantial reason (SOSR) – s.98(1)(b) Employment Rights Act 1996 for example where your absence is negatively affecting your employer’s business.

A dismissal will be automatically unfair if it is for reasons related to pregnancy, childbirth, maternity, asserting family rights, flexible working rights and health and safety. Contact us for advice. 

See Employee Rescue resources on facing disciplinary action, and capability

 

Settlement Agreements

You and your employer could negotiate a settlement agreement so that you leave on agreed terms. Settlement agreements come under section 111A of the Employment Rights Act 1996. ACAS defines settlement agreements as “….legally binding contracts which can be used to end an employment relationship on agreed terms. They can also be used to resolve an ongoing workplace dispute, for example, a dispute over holiday pay. These agreements can be proposed by either an employer or an employee, although it will normally be the employer”.

Once a valid settlement agreement has been signed, you will not be able to make an employment tribunal claim about any type of claim which is listed on the agreement. Contact Employee Rescue for help and advice on settlement agreements.

 

 

Best of the web

CAB – Off work because of sickness

ACAS – Managing absence

HSE – Sickness absence; Guidance on legal issues

Managing sickness absence and return to work

WorkSmart – My employer has warned me about my levels of sickness absence. What do I do?

NHS – When do I need a Fit Note?

Working Families – Your rights if you are ill during pregnancy

Maternity Action – Sickness during pregnancy and maternity leave

Disability Law Service – Disability and sickness absence

TUC – Sickness absence and disability discrimination

 

Disclaimer 

This resource is published by Employee Rescue Limited. Please note that the information and any commentary on the law contained herein is provided free of charge for information purposes only. The information and commentary does not, and is not intended to, amount to legal advice. Employee Rescue accepts no responsibility for any loss occasioned to any person acting or refraining from action as a result of the material contained in this update. Further specialist advice should be taken before relying on the contents of this summary. No part of this summary may be used, reproduced, stored in a retrieval system or transmitted in any form without the prior permission of Employee Rescue Ltd.

Case Study

In the Scottish case of Collins v First Quench Retailing Ltd [2003], Ms Jacqueline Collins was awarded £179,000 from her employers when the off-license she managed was robbed. Ms Collins had been the manager of Victoria Wine, run by First Quench Retailing, for about ten years. When Mrs Collins started in the shop she had been concerned about security and raised this with management. Since 1977 there had been 13 reported crimes at the shop, including five thefts, one minor assault, one serious assault and one assault with intent to rob. There were two armed robberies in 1994 and four... Read More
Ms Jacqueline Collins was awarded £179,000 from her employers when the off-license she managed was robbed.Collins v First Quench Retailing Ltd
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