Dismissal is sometimes a possibility for those on long-term sick leave or for those who may have frequent periods of sickness absence. Your employer should follow a fair procedure before deciding to dismiss and some employees who are dismissed because of ill health have the right to rely on the unfair dismissal provisions of the Employment Rights Act 1996.
If you have been in regular contact with your employer and there seems little chance of you being able to return to the role that you were employed to do, or any other suitable role, then your employer may be justified in terminating your contract. In some very limited cases of serious illness causing long-term sickness absence, your employer may argue that the contract has been frustrated, which means that it has come to an end without the need for a dismissal and by operation of law instead.
It is important that you have our support at an early stage if you think that your absence could be long term. Please contact us for advice.
Before dismissing an employee due to ill health, employers should follow certain principles.
- They are expected to follow a fair procedure before deciding to dismiss.
- They must take appropriate and sensible steps to inform themselves of your true medical position.
- They should consider the opinion of an independent medical adviser if you ask them to.
- When deciding that you cannot continue in your original job because of ill health, your employer must go on to consider suitable alternative work which may be of a different band/grade (not necessarily lower).
- Consideration must be given to the provisions of equality legislation, such as the Equality Act 2010, when deciding whether or not to dismiss. In general, the legislation will not affect the dismissal of an employee who is incapable of carrying out his or her job and has been absent for a long time. However, if it was reasonable for the employer to make an adjustment and they do not do so (for example, to a disabled employee’s working hours or duties so as to enable him or her to return to work) then a dismissal may be unfair and discriminatory.
An employee whose contract is terminated while on long-term sick leave and who has exhausted all entitlement to sick pay will be entitled to full pay for the statutory minimum notice period. This is unless his or her contractual notice exceeds the statutory minimum notice by at least one week.
Section 86 of the Employment Rights Act 1996 sets out the statutory minimum notice periods. These are one week where the employee has at least a month’s but less than two years’ continuous service, and one week for each year of continuous service, up to a maximum of 12 weeks, where the employee has at least two years’ service.
As an example, where the contractual notice period is one month, but the employee being dismissed while on long-term sick leave has over seven years’ service, his or her statutory notice entitlement will be seven weeks, so this will be payable at the full rate. (1 x 7=7)
However, where the contractual notice period is one month and the employee has three and a half years’ service, his or her statutory notice entitlement will be three weeks. (1 x 3 =3)
The contractual notice period exceeds the statutory notice by at least one week, and there will be no statutory obligation for it to be paid at the full rate.
Employers sometimes treat an employee applying for ill health retirement as either an act of resignation (in which case no notice is payable if sick pay has run out) or class it as a termination of contract by mutual consent.
Certain state benefits paid to you as a direct result of an accident can be reclaimed by the DWP if you later recover damages as a result of a personal injury claim. Some employment contracts may contain clauses requiring employees to recover any contractual sick pay paid as a result of an accident, as part of a personal injury claim. It is sensible to check your contract of employment carefully or to discuss the position with your employer before your claim is settled.
Read our guide on accidents at work and personal injury.
If you are concerned about or are facing dismissal due to ill health, please contact us.