There are a number of different reasons you may be off sick from work, whether this be the occasional absence or a more long-term situation, sickness absence can cause significant problems for employees which may or may not result in dismissal.
Whilst it is not automatically unfair to dismiss you whilst you are off sick, it is not necessarily a straightforward procedure for your employer either. All decisions potentially amounting to dismissal need to be considered carefully.
Sick leave and Disability discrimination
If you have an ongoing condition or have been diagnosed with a serious illness, you may be found to have a disability under the Equality Act 2010. You may not necessarily see yourself as someone with a disability but you would be protected under this legislation if you have a mental or physical impairment that has a substantial, long term effect on your day to day activities.
This may mean that your employer would need to make reasonable adjustments for you to aid your return to work or even relax the absence policy for your specific needs, to make sure that you are not being put in a less favourable position than another employee because of your disability.
It is important to note that you do not need 2 years service in order to be protected under the Equality Act 2010. This does not mean however that you are protected from being dismissed in all circumstances. This will depend on a variety of factors and you may require specific advice.
Sick leave and Unfair dismissal
An employee who has at least 2 years service may be protected from being unfairly dismissed whilst off sick. A dismissal may be deemed unfair at tribunal unless the employer can show that it;
- Had a potentially fair reason to dismiss
- Followed a fair procedure
- And acted reasonably in all the circumstances
An employment tribunal will consider whether an employer acted within a reasonable range of responses when choosing to dismiss. Of course, there may come a time at which an employer is entitled to take action, but they must still provide adequate warning to the employee that dismissal was a potential outcome if their lack of attendance was to continue.
Has my employer followed a fair procedure?
An employer’s response may vary depending upon the length of absence.
For a long-term absence, an employer must obtain a medical report to establish the likelihood of any improvement to the condition in the short to medium term. It must also investigate, potentially with the employee and occupational health, whether any adjustments can be made to aid the employee’s return to work.
In cases of short-term absence, employers should record the reasons for absence, consult with the employee and give them the opportunity for their absence to improve and must provide appropriate warnings if that absence does not improve.
Can my employer contact me whilst I am off sick?
Your employer can contact you whilst you are off sick from work and you can discuss how often this may be with them. Whilst calling every day and asking when you will be returning may not be appropriate, your employer will need to obtain the likelihood of your return within a reasonable amount of time so we would advise that you make efforts to cooperate where possible.