I wonder if I can dismiss an ill employee?

As an employer, managing staff illness can be challenging, particularly when prolonged or frequent sickness absence affects business operations. Employers must navigate employment laws, health and safety regulations and their duty of care they owe to employees, whilst maintaining the operations of the business when discussing the dismissal of an ill employee. This requires careful navigation of legal protections and procedures to avoid claims of unfair dismissal or discrimination.

This article will discuss the key factors to consider when determining whether to dismiss an ill employee, whether it is lawful and fair, including legal frameworks which may disrupt the process.

What is recognised as an illness?

An illness is ‘a disease of sickness affecting the body or mind’. Under the Equality Act 2010, an illness can be classified as a disability if it meets specific criteria. The Act defines a 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 day-to-day activities. "Substantial" means the effect is more than minor or trivial, while "long-term" generally refers to an impairment that has lasted, or is expected to last, for at least 12 months or for the rest of the person’s life. Temporary illnesses, such as a short-term infection or injury, typically do not qualify unless they have long-term effects or exacerbate an existing condition.

Those with disabilities are therefore entitled to protection under the Act, including the right to reasonable adjustments in the workplace. This is where an employer must find an adjustment for an employee with a disability which doesn’t put them at any disadvantage in the workplace. These may include changing working hours, adapting the role, or providing extra support. Dismissing an employee without exploring such adjustments could lead to a claim of disability discrimination.

Many illness can fall into the category of disability, which means that employers have a duty for employees on long-term sickness absence to provide them with reasonable adjustments upon their return.

Situations you can dismiss an ill employee:

An employer can dismiss an ill employee in certain situations, but only if specific legal conditions are met. One scenario is when an employee’s prolonged or frequent absence due to illness makes it impossible for them to fulfil their role, and no reasonable adjustments can be made to support their return.

Before dismissal, the employer must have sought medical advice (e.g., through an occupational health assessment) to understand the illness’s impact and potential recovery. Another situation is if the illness is significantly affecting the business, such as causing operational disruption, and redeployment or alternative solutions are not feasible. The employer must follow a fair process, including consulting the employee, considering reasonable adjustments (if the illness qualifies as a disability), and providing sufficient notice. Dismissal should always be a last resort after all alternatives have been exhausted.

The ACAS code suggests that employers should avoid dismissing employees on the grounds of capability, as this could infer a claim of failure to make reasonable adjustments for the employee. Instead, employers should look for ways to support the employee on sick leave, make changes to their role or use a phased return back to work after absence to slowly introduce the employee back into the workplace.

What to do:

If the employee has had a significant time off work, then it may be reasonable for the employer to dismiss them. Employers intending to dismiss employees with over two years service must follow a fair procedure before reaching the decision of dismissal. Employers should meet with the employee at least twice prior to taking this route to show their attempt to come to an agreement with the employee as to their return to work or any reasonable adjustments. If this is not successful, their must be a reasonable investigation and the employer must:

Employers must ensure that they write to the employee and explain that they are considering dismissal in invite them to a meeting. The letter must set out details of the employee’s absence and any medical evidence relied upon for making this decision, and the employee’s right to be accompanied to any meeting arranged. A formal meeting should be arranged following this to discuss the absences, medical evidence set out and give the employee a chance to respond to the medical evidence.

If an employee is unable to attend a disciplinary meeting, the employer should postpone the meeting, hold the meeting somewhere else or agreeing to receive written evidence. The employer must not skip this meeting as this could result in a claim for unfair dismissal.

If a decision has been made and the employee is dismissed, the employer should always emphasise the employees right to appeal the disciplinary decision if the employee believes that they have been wrongfully dismissed. They should always follow the procedure set out in the Disciplinary Procedure policy. The appeal from the disciplinary decision should be held by an alternative member to who held the original meeting. A failure to provide a proper appeal process can make the disciplinary decision procedurally unfair, which could result in claims of unfair dismissal or breach of contract.

In conclusion, there are limited circumstances where employers can dismiss an employee for being ill. There must be rigorous investigation into whether the dismissal is reasonable, as employers can be the victim of a disability discrimination claim. However, dismissal of an ill employee can be justified so long all of the rules and procedures are followed. By following the right procedures and maintaining open communication, employers can manage sick employees effectively while minimising legal risks

If you require advice on disciplinary proceedings or other employment matters, our Peace of Mind Team can provide specific advice and our Document Audit Team can help draft relevant policies. Contact our Employment Team by emailing employment@warnergoodman.co.uk or call 023 8071 7717