In this guide, we will discuss “Can I be sacked for being off sick in the UK?”, fair dismissal reasons, unfair dismissal following sickness, fair dismissal procedure, and your rights during sick leave. This information can be very useful if you think you may be dismissed for being sick or if you have already.
Can I be sacked for being off sick in the UK?
Many employees think “Can I be sacked for being off sick in the UK?” and the answer is, it depends, your employer can dismiss you for being off sick but your employer must have a fair reason for taking the decision of dismissing an employee. Here we will talk about fair reasons for dismissal and your employment rights if you are worried about being dismissed.
According to the Gov.uk website “You can be dismissed if you have a persistent or long-term illness that makes it impossible for you to do your job.” However, before your employer considers the dismissal for being off sick, they need to take action to look for ways to support you or give you a reasonable time to recover.
Although, your contract of employment will normally include what are your rights in terms of company sick pay policy and over what period. If there is no information stipulated about company sick pay, you may be entitled to Statutory Sick Pay (SSP). The amount of time covered by SSP is generally 28 weeks in a 3 year period and the sick pay amount presently is £95.85 per week.
Fair reasons for dismissal
If you have been fired because of your conduct, it usually means that you have broken one or more of the terms included in your employment contract. For instance, if you have been continually missing work, poor discipline, drug and/or alcohol abuse, theft, dishonesty, etc.
However, whatever the reason is, your employer should follow a disciplinary process before letting you go.
This refers to your ability to do your job, meaning that if you have been dismissed for your capability then your employer thinks you aren’t performing your job to the required standard or you haven’t been able to perform your job properly. Here are some examples from nidirect.gov.uk:
- you haven’t been able to keep up with technological changes to your job
- you can’t get along with your colleagues
- long-term or persistent illness makes it impossible for you to do your job
However, your employer should have provided adequate training to do your job or if you are performing poorly, they should have warned you about how your job wasn’t satisfactory, giving you a chance to improve before letting you go.
Being off sick
It is true that most employers consider that having employees off sick is not profitable for their business, however, it is something they can’t actually control. If you have been sick for a long period of time (usually more than 4 weeks), your employer should have looked at alternatives before dismissing you. For instance, if your employer has determined your job is the one making you sick then, it needs to be changed.
However, as we have mentioned, your employer can dismiss you if you are off sick. Normally, your employer would allow a reasonable amount of time for you to recover from your illness but the amount of time will depend on things like how long will you take to recover or if it is certain that you will recover.
Consider how if you have a long-term illness considered as a disability, which is the case for depression, your employer has a legal duty to try to find a way to get around the problem. They must make what it’s considered “reasonable adjustments” to your workplace. If they dismiss you when having a disability it can be considered discrimination.
This means being dismissed from your job because your employer needed to reduce their workforce. Here are some reasons from nidirect.gov.uk:
- new technology or a new system has made your job unnecessary
- the job you were hired for no longer exists
- the need to cut costs means staff numbers must be reduced
- the business is closing down or moving
You have the right of being treated fairly if you are being made redundant and your employer has several responsibilities towards you to make sure this happens.
A statutory restriction
Your employer is entitled to a fair dismissal if you keep breaking the law. According to the gov.uk website “You can be dismissed if continuing to employ you would break the law – for example, if you’re a driver in a lorry firm and you lose your driving license.”
Some other substantial reason
This applies to a situation where your employer has an “overwhelming reason” why you must be dismissed. However, they are expected to look at other alternatives before deciding a dismissal. Some of the reasons that fall into this category include:
- An unresolved personality clash between you and a co-worker.
- Unreasonably refusing to accept a company reorganization that changes your employment terms
Unfair dismissal following sickness
If you have been employed for at least 2 years, you are protected against unfair dismissal, and you can bring a claim in the employment tribunal to enforce the protection after being fired for being off sick.
If you have more than 2 years working for your employer and you were dismissed unfairly, your employer will need to show they had a potentially fair reason for dismissing you or that they acted reasonably in the circumstances.
According to Ben Power from Springhouselaw.com, “Capability, i.e. the ability to do the job, is a potentially fair reason which would cover sickness. Where absences are for unconnected health reasons (rather than an underlying condition), the employer may dismiss for some other substantial reason (SOSR). In this circumstance, they may argue that the disruption caused by the employee being off work can no longer be effectively managed and is damaging the employer’s business.”
Fair dismissal procedure
According to Ben Power from Spinghouselaw, “The ACAS Code on disciplinary and grievance procedures does not apply to capability dismissals for ill-health. However, this does not mean that an employer is excused from going through a procedure prior to dismissal.”
In the case of long-term ill-health your employer should attempt to obtain your medical report to establish the prognosis and the course of your illness, to determine whether or not there is likely to be an improvement and when it is expected.
Moreover, your employer must exhaust all the options available when making adjustments (ideally in consultation with the employee) that might be able to assist you in returning to work. You should get appropriate warnings that your employer will consider dismissing you, before they actually do.
In the cases of short-term absence, your employer should be expected to carry out a fair review of attendance records and the reason for your absence. In addition, they should consult and talk to you and give you the opportunity to make representations and you should receive the appropriate warning about the dismissal if things don’t improve.
Your rights during sick leave
- Your employer must keep in contact with you throughout your illness to ask about your welfare.
- They must ask for your consent to obtain your updated medical records related to your prospects of returning to work.
- You will remain an employee until you are able to return to work, unless you are questioned about your capability to perform your job.
Why is this blog about Can I be sacked for being off sick in the UK important?
This blog about “Can I be sacked for being off sick in the UK?” is important because it is necessary to be aware of your rights regarding sick leave. Basically, the answer to the most feared question is, Yes. Your employer can dismiss you for being sick but the answer isn’t that simple either since they need to consider following certain procedures before firing you on this ground.
If you have been dismissed from work due to being on sick leave and you consider it is unfair, try to get legal advice on how to proceed with a claim for unfair dismissal.
Please feel free to leave any comments or thoughts about the content of this article!
Frequently Asked Questions (FAQs) about Can I be sacked for being off sick in the UK
Can I be sacked for being off sick with a doctor’s note UK?
You can’t be sacked for being off sick with a doctor’s note in the UK, unless your employer had reasons to believe you were lying or the note was fake. However, as long as you have been signed off after being assessed by your GP indicating you need time off for being sick then you don’t have anything to worry about.
Can you be sacked whilst on sick leave?
You can’t be sacked whilst on sick leave and if you do, your employer must have been following a procedure because if you have been dismissed with no apparent valid reason you can sue due to fair dismissal. Usually, employers do give warnings when they are about to dismiss an employee for being off sick for a long period of time and not knowing when the employee will return, but those cases are considered on an ongoing basis.
How long can you be off work sick before being sacked?
Most employers consider long-term sickness absence as four weeks or more. Here is when employers start to consider dismissing their employees but before they actually consider it, the employer must consider the employer’s right to contest their decision.
How many sick days per year is acceptable in the UK?
In the UK you can self-certify the up to 7 days being off sick and employers understand that occasional illness is inevitable and it is normal but when employees abuse the sick leave privileges, it can impact the organization negatively. There is no acceptable amount since you can be off sick as long as you have a fit note stating this but according to helix-law.co.uk in the UK, “employees take an average of 6.9 days of sick leave per year.”
How many sick days is too many UK?
Being off sick for more than 7 days is considered “too many” days in the UK, where you can self-certify the first 7 days, and then you will need a doctor’s fit note or sick note.
Nidirecr.gov.uk: “Fair reasons for dismissal”
Gov.uk: “Dismissal: your rights”
Power, B. (2019, Aug.) Can you be sacked for being off sick?. Retrieved from Springhouselaw.com.
Lunat, Y. (2018, Oct.) Can I Be Sacked Whilst Off Work Sick?. Retrieved from isonharrison.co.uk.