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Being sacked for absence

being sacked for illness

It is possible to lose your job due to absence caused by your disability, but only in certain circumstances.

Your employer could dismiss you on the grounds of either conduct or capability.

A dismissal for conduct is if the employer believes that the employee is not ill but is using sickness as an excuse.

A dismissal for capability can occur if an employee is unable to do their work because of ill health. If an employee's health or abilities are not up to the demands of the job then, provided the employer acts fairly, dismissal (with notice) can be justified.

However, capability dismissals may be unfair. The employer has to have behaved reasonably and be able to demonstrate that no adequate reasonable adjustments could be made. Dismissal should be the last resort when there are no further options.


Keeping record of disability-related illness:

The Disability Rights Commission guidelines state that your employer should record absences related to your disability separately from your absences related to other illnesses. They state that some or all of your disability-related illness should not be counted for:

  • disciplinary procedures
  • performance appraisal
  • references
  • selection criteria for promotion
  • selection criteria for redundancy

When you might be dismissed:

How long an employer is expected to wait before making a decision to dismiss someone depends on common sense. For example, the following could be taken into account: 

  • the degree of disruption caused by the worker’s absence
  • the ease and expense of others covering the employee’s work
  • the employee’s length of service
  • the prognosis or the medical evidence about the illness.

Employers' responsibilities:

An employer has a duty to make reasonable adjustments (as required by the Equality Act 2010) where appropriate.

Examples of reasonable adjustments include:

  • allowing you to work more flexible hours
  • moving you to a more suitable post (if one is available)
  • discounting your disability-related absences

How we can help:

You should explore whether you may have a case for unfair dismissal. In most circumstances you'll need to qualify before you can make a complaint to an employment tribunal: you need at least two years' continuous service if your employment started on or after 6th April 2012.

However, there is no length of service requirement in relation to 'automatically unfair grounds'.

Get in touch with THT Direct at 0808 802 1221 and we’ll put you in touch with a local advice service.

 

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2 comments

  • this is good info

    Posted 08:48 Sat 29 Jun 2013
  • Have been dismissed after I was off work for 9 days split into two different occasions, firstly for 5 days with shingles and 4 days with sickness and diarrhea. As I was still in my probation period I don't have the law on my side. I had to have a meeting where I told my employer of my condition which I found very upsetting, but this did not make any difference to the outcome.

    Posted 13:44 Tue 15 Oct 2013

The Information Standard: Certified member

This article was last reviewed on 28/11/2016 by Anna Peters

Date due for the next review: 28/11/2019

Content Author: Gillian Arrindell

Current Owner: Advice & Advocacy

More information:

Termination of employment and disability discrimination, Citizens' Advice

Dismissing employees, March 2015, ACAS

Employment status, November 2016, gov.uk