Can I be sacked because of all the sick leave I am taking?

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Last year, a somewhat worried friend asked me if she could be sacked because of all the sick leave she had been taking. The short answer to such a question is yes, possibly, but it depends very much on the circumstances and the approach taken by the employer.

The friend – I’ll call her Alice – was fairly senior; and certainly as a result of her sick leave, her work was suffering. But Alice had worked continuously for the employer for a number of years so by law could not be unfairly dismissed (two years continuous service are needed for such protection). Nor, after we discussed the circumstances, was there any suggestion of discrimination or other inadmissible reasons which do not need any qualifying service with the employer (e.g. dismissal for being a trade union member).

Indeed, her periods of sick leave, amounting to some five months out of the last nine, were due to a condition for which she was being treated, but where the progress on returning to full health was desperately slow.

So could Alice expect to be given notice of dismissal?

Dismissal for long-term or frequent sickness absence can be a potentially fair reason for dismissal. However, before any notice is given an employer would have to take a number of steps to ensure that dismissal was actually a reasonable response to the sickness absence.

A key first step would be to investigate the reasons for the sickness absence. This would usually mean, as happened to Alice, being referred to an occupational health (OH) specialist or to another doctor. Alice did fear that OH would be acting for the employer; and would report whatever the employer wanted to hear. However, a proper OH professional will be qualified, and independent of the employer. I advised that she consent to the referral as it was in her best interest to have a second opinion. Similarly, I advised her to consent to more information being sought by the employer from her GP and consultant. Alice was reassured when I explained that she would be entitled to a copy of any reports written about her.

Another important step is for an employer to consult with the individual in question. This doesn’t mean frequent phone calls while the individual is off sick, or turning up on their doorstep. Instead, once the nature of the sickness has been investigated, there should be a level of agreed contact that respects the individual’s need for privacy and time to recover.

Alice was unhappy about a suggestion of a home visit but agreed to a monthly telephone call that, in the event, was always short, friendly and handled with empathy by the employer. Once her recovery was near completion, she agreed to a return-to-work interview to look at how she could best be re-integrated, albeit slowly at first, into the working environment.

Of course it is sometimes the case that an individual may be able to return to work to undertake different duties. This was not possible in Alice’s case, but is a consideration that a reasonable employer should discuss with the individual in the light of any comments from OH.

Alice was still concerned that the nature and likely duration of her sickness would result in the employer losing patience. But as I pointed out to her, whist this is a consideration, it should not be the only one. Once the nature of the sickness is established, the employer also needs to consider the likelihood of a full recovery being made, and the amount of recovery time likely to be taken.

As it happened, there was no need for Alice to worry about dismissal. She eventually made a full recovery and is now back doing her job with her usual enthusiasm.

However, if the employer had been minded to consider dismissal, there are a few additional but important steps to take.

Firstly, they would need to warn that dismissal is a possible outcome; and second, consider the practical need for the particular employee to do their job and the difficulty in providing appropriate cover. So if it was possible to keep the role functioning while the employee recovered, then there would be no need for a dismissal to enable recruitment of a replacement.

The employer would also need to ensure that their sickness policy had been applied fairly and consistently. Finally, they would then need to ensure a fair procedure is followed for the dismissal itself.

Taken as a whole, this may sound complicated. But to any employer I would advise ensuring that your sickness policy is suitable and reasonable; and that you apply it with empathy and fairness. To an employee I would advise making sure you follow the advice of your medical professionals, make sure you understand your employer’s sickness policy; and if you belong to a trade union, don’t delay seeking their help and advice.

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