Greater Manchester Pay and Employment Rights Advice Service Factsheet

Dismissal for Sickness

This factsheet explains the procedure your employer should follow before s/he can dismiss you because you have been off sick.  If you have one year’s service and your employer fails to follow the procedure, you may be able to make a claim for unfair dismissal at an Employment Tribunal. Even if you do not have one year’s service, it would be good practice for your employer to follow this procedure.  ACAS says that when employees are absent from work for medical reasons, employers should consider:

• how soon the employee’s health and attendance will improve;
• the effect of the absence on the organisation;
• how similar situations have been handled in the past;
• whether the illness is because of a disability in which case the Disability Discrimination Act may apply (see our factsheet ‘Disability at Work’);
• whether alternative employment can be offered or if reasonable adjustments can be made to the job or working arrangements.

This procedure is not law, but Tribunals expect employers to follow it before they dismiss employees for sickness absence.

Dismissal for long term illness

Besides the steps that ACAS recommend, there are further steps your employer must take before s/he can dismiss you on the grounds of long-term sickness:

• S/he must consult with you about your illness;
• S/he must contact your own doctor or medical representative;
• S/he must offer you another job if possible.

Consulting you about your illness

Your employer must find out about your illness by talking to you in person. An Employment Tribunal ruled that an employer must have discussions with the worker who is ill at the start of his/her illness and at various periods throughout the time the worker is ill.

Your employer should ask for your opinion about your illness. This may include asking when you are likely to return to work and whether you think you will be able to do your old job. Although an employer may ask for your opinion, this does not mean s/he can dismiss you because you were proved wrong about your illness. For example, if you said you would be off work for eight weeks but did not return for ten weeks your employer could not sack you because you misjudged the situation.

Consulting with your doctor

Your employer should consult with your own doctor before s/he makes any decisions about your future employment. Your employer should not contact your doctor without your written agreement. If you agree to let your employer contact your doctor, s/he will probably ask him/her whether you will be all right to return to work in the future.  Your employer must give you the option of seeing any medical reports before they do.  It is a good idea to see your doctor about what s/he will tell your employer.  You can also refuse your employer permission to see the report altogether, or have your own statement attached to it. However, if you do refuse to let your employer see the medical report, s/he may be entitled to dismiss you on the basis of information s/he already has, even if the available medical facts are not enough to give a full description of your illness.

If your employer asks you to visit a doctor who is being paid by him/her, such as a company doctor, and relies on the doctor's advice alone to dismiss you, this may be seen as unfair by a tribunal.  Your employer may want you to be examined by a specialist depending on the nature of your illness. If you refuse to see a specialist then your employer may be entitled to dismiss you even if s/he does not know all the facts about your illness.

Suitable alternative employment

After consulting your doctor about your illness, your employer should look at whether there is an alternative form of work that you can do in the company if you cannot continue in your present job.  A Tribunal ruled that even when an employer has no suitable alternative employment at the time s/he gives notice of dismissal, s/he should still consider whether there is any alternative work at the actual time of dismissal.

Disability discrimination

Employers must consider alternative employment or making adjustments to working arrangements if the employee in question has a condition which is covered by the Disability Discrimination Act.  See our factsheet on Disability at Work for information about this, and contact us or another agency listed on the back of this factsheet for advice.

Dismissal for persistent short term absences

In cases of persistent short-term absences your employer does not have to follow the procedures laid out for long term absences but is expected to follow either their own contractual capability procedure or, if they do not have one, the ACAS code of practice (COP). See our factsheet Disciplinary and Dismissal Procedure.

However, if you are absent for short periods because of the same illness, your employer should treat these periods of absence as a long term illness and follow the procedure outlined above for dealing with long-term illness.

Redundancy selection

When considering what methods they should use to select employees for redundancy employers must show that they are not dismissing an employee solely on the basis of non-attendance due to illness, although it may be one of the things looked at. However, your employer cannot say s/he is making you redundant because you were off sick if:

• your employer has not asked you about why you have been off ill, and
• the period used by your employer to look at your attendance record makes it appear to be worse than it actually is, for example just looking at the last six months where you have been off sick instead of looking at your attendance record over a longer period.

If you are off ill at the time of redundancy, your employer may try to claim that the real reason for your dismissal is based on your absence from work, rather than the fact that you've been made redundant. S/he may then try to withhold any redundancy money owed to you. As a general rule in this situation, if your employer announces redundancies and around the same time attempts to dismiss you on the grounds of illness, the real reason would probably be classed by a tribunal as redundancy.

Frustration of the employment contract

This means that the contract of employment between you and your employer no longer applies because both or one of the parties are unable to fulfill the terms and conditions contained in the contract, even though it is neither your nor your employer's fault. Your employer may try to claim that the contract you have with him/her is frustrated because of your absence through illness. If your employer was successful claiming that your contract had been frustrated it would mean that s/he would not have to pay you things like notice pay. You would not be able to claim unfair dismissal.

If your employer claims the contract between you both is frustrated because of your long-term sickness, s/he needs to take certain factors into consideration such as:

• your length of employment;
• how long your employment could be expected to last if you were not ill;
• the nature of your job;
• whether your employer urgently needs someone to replace you;
• whether a new worker will acquire employment protection;
• whether you have continued to be paid, including payments made to your pension scheme if you have one;
• whether your employer has already dismissed or failed to dismiss you;
• whether your employer could be reasonably expected to wait any longer for you to return.

Generally courts and Tribunals are reluctant to find that a contract has been frustrated and your employer would need strong evidence before they allow a claim to succeed. Your employer would have to show that there is no reasonable prospect of you recovering from your illness to resume work in the future (an absence of two years may still not frustrate the contract) or that there is a need to find a permanent substitute worker because your position in the firm is very important and/or you could not be found alternative work.

Medical suspension for health and safety reasons

Medical suspension means you can be suspended from your normal work on your normal weekly pay for up to 26 weeks, to prevent you falling ill from working with hazardous substances. Normal pay in this situation is called medical suspension pay, (MSP). You have the right to MSP after one month's service regardless of the hours you work.  You cannot claim MSP if you are already ill because of exposure to harmful substances.  Health and safety law includes procedures for dealing with this issue and it generally covers jobs involving risk of exposure to lead, other hazardous substances or ionising radiation.  For information about health and safety at work contact:

• the Health and Safety helpline on 08453 450055, or
• Greater Manchester Hazards Centre on 0161 636 7557.

Sick pay

You should check your contract of employment to see what you will be paid when off sick. If your contract does not say anything then statutory sick pay rules apply. Statutory sick pay (SSP) is a benefit paid to workers who are sick and who earn enough to pay National Insurance contributions. It is paid for up to 28 weeks’ absence from work because of illness and it is currently £79.15 per week (to April 2011), regardless of how many days you work per week. Contact us for a factsheet about SSP if necessary.

Holiday pay

The European Court of Justice has recently made a judgement in a long-running case concerning holiday entitlement and long-term sickness absence. This judgement is that workers on sick leave continue to be entitled to their (statutory) holidays and must be paid holiday pay. Although the ECJ didn`t clarify this, we would advise workers in this position to request 5.6 weeks` holiday per year in the normal way.

If the employment terminates, then a worker off sick is entitled to a payment of outstanding holiday pay on termination in the normal way. We have a factsheet called Dismissal for Sickness, contact us for a copy if necessary.

Asserting your rights

If your employer does not follow the steps laid out in this factsheet, then you should send a grievance letter first of all. See our factsheet Grievances for guidance on doing this. You have the right to make a complaint to the Employment Tribunal, but any compensation you are awarded may be reduced if you did not follow a grievance procedure first.

This is a summary, not a full statement of the law.  You should take advice before taking action.

If you need more information about pay and employment rights, contact

Greater Manchester Pay and Employment Rights Advice Service

( 0161 839 3888 phone and answer machine)

or visit our website: www.gmemploymentrights.org.uk

Trade Unions

Trade unions help workers to get better pay and work conditions.

For further information contact us or:

North West TUC, Suite 506-510, The Cotton Exchange, Old Hall Street, Liverpool, L3 9UD

Tel: 0151 236 5432

Greater Manchester Pay and Employment Rights Advice Service is an independent research and information body funded by all local authorities in Greater Manchester under the AGMA grants scheme

August 2010