In Northumberland Tyne & Wear NHS Foundation Trust v Ward the Employment Appeal Tribunal (EAT) ruled that the employer who did not adapt the sickness absence trigger point for a disabled employee, had failed to make a reasonable adjustment. Read more
In a word, Yes! Your employer can dismiss you for always taking sick leave. [see Absence from work]
There are four categories of absence from work. These are when;
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.
The ACAS Code of Practice 1 does not apply to sickness dismissals, however the e ACAS Guide on Discipline and Grievances at work covers ill-health dismissals at Appendix 4 (page 71). The guide says that;
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. Raise a Grievance about what you are going through.
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. Stick to the letter of your employer’s absence/sick leave policy and keep your employer informed of your progress. 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. Remember that if you are not able to give your employer an idea of when you will return to work, you could lose your job.
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!
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. Your employer must make reasonable adjustments for you, if you are disabled. 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 would have a claim in the Employment Tribunal.
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.
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 covered by GDPR and the Data Protection Act 2018. It’s 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 Privacy at Work]
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;
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.
If you don’t think you can return to work, then get in touch with ACAS for Early Conciliation to reach a negotiated exit. You can also negotiate yourself by inviting your employer to have a protected conversation with you. 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.
GOV.UK – Taking sick leave
ACAS – Absence from work
HSE – Sickness absence; Guidance on legal issues
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
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