Employees cannot automatically face dismissal due to ill health. However, in some circumstances, an employer may be able to fairly dismiss an employee on capability grounds where their health is affecting their ability to carry out their role. Before reaching this stage, employers should follow a fair process, obtain appropriate medical advice, and carefully consider alternatives such as reasonable adjustments or changes to duties.
Dismissal should always be treated as a last resort, with the employee’s wellbeing and individual circumstances considered throughout the process.
In this article, we look at when dismissal due to ill health may be lawful, the process employers should follow, and common mistakes to avoid.
Dismissal Due to Ill Health
As mentioned above, you may take the decision to dismiss an employee due to lack of capability. You must clearly show that you followed the right procedures and acted reasonably in treating the long-term illness as a valid reason for dismissal. Each case depends on the circumstances and this should be a last resort.
What Is a Capability Dismissal?
A capability dismissal occurs when an employee is unable to carry out their role to the required standard due to reasons outside of misconduct. This can relate to factors such as performance, qualifications, or health. In cases involving ill health, capability concerns usually arise when an employee’s medical condition affects their ability to perform their duties or attend work regularly.
Dismissal on capability grounds should not be confused with disciplinary action. If an employee is absent due to a genuine health condition, employers should approach the situation with care and support rather than treating it as misconduct.
Capability issues linked to ill health can arise in different ways. For example, an employee may be absent for an extended period due to a serious illness, or they may have frequent periods of short-term absence that are impacting their ability to carry out their role consistently.
Before considering dismissal due to ill health, employers should take steps to fully understand the situation.
What Should Employers Do Before Considering Dismissal?
If you are considering dismissing one of your employees due to long-term sickness absence, you must investigate the possibilities of them being able to return to the office within a reasonable time. Therefore, you must follow a fair procedure. This includes:
- Consult with your employee
- hold welfare meetings
- get a medical report from your employees GP. You must get their permission before you do this and they have the right to see their report before you do.
- seek Occupational Health input
- Look at reasonable adjustments such as alternative roles, hours, workplace adaptions, and phased return
- Look at the possibility of ill-health retirement
As an employer, you must find out the medical position and consult with your employee before deciding if dismissal due to ill health is appropriate.
Why Occupational Health Reports Matter
When managing long-term sickness absence, employers should avoid making assumptions about an employee’s health or their ability to return to work. This is where Occupational Health support can play an important role.
An Occupational Health report provides independent medical guidance to help employers better understand an employee’s condition and how it may be impacting their work. It can offer valuable insight that supports fair decision-making and helps employers explore options before considering dismissal.
An Occupational Health assessment may help answer questions such as:
- Is the employee currently fit to carry out their role?
- Is a return to work likely, and if so, when?
- Are there adjustments that could support them in returning?
- Does the condition meet the definition of a disability under the Equality Act?
- Would temporary changes to duties or working patterns help?
- Is redeployment into an alternative role worth considering?
While an Occupational Health report does not make the decision for an employer, it can provide important information that helps guide the next steps and reduce the risk of unfair dismissal or discrimination claims.
Could the Employee’s Condition Be a Disability?
Before making any decisions on dismissal due to ill health, employers should consider whether an employee’s health condition could amount to a disability under the Equality Act 2010. Conditions that have a substantial and long-term impact on a person’s ability to carry out normal day-to-day activities may be classed as a disability. This could include physical health conditions, long-term illnesses, or mental health conditions such as anxiety or depression.
If a condition meets this definition, employers have a legal duty to consider reasonable adjustments and take extra care when managing absence or capability concerns. Failure to do so could create a risk of disability discrimination claims.
Common Employer Mistakes to Avoid
We’ve seen too many time, employers making mistakes before reaching out to us for help. This includes:
- dismissing too quickly
- failing to obtain medical evidence
- ignoring Occupational Health advice
- poor documentation
- failing to consider adjustments
- inconsistent treatment
Failing to follow the right procedures can lead you to an employment tribunal. Our team of experts are always here to help to ensure you are on the right side of the law.
Final Thoughts
Managing long-term sickness absence can be challenging for employers. While dismissal due to ill health can be fair in some situations, employers should treat it as a last resort. Taking medical advice, considering reasonable adjustments and following a fair process can help reduce legal risk and support better outcomes for everyone involved.
If you’re managing a complex sickness absence case and need support, our HR consultants can guide you through the process.
