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Employment tribunals - legal tests for unfair dismissal claims - long term sickness

This advice applies to England

If you have spent a lot of time off work because of sickness, it may be reasonable for your employer to dismiss you on the grounds that you are no longer capable of doing your job.

If you’ve been working for your employer for 2 years or more, they have to follow the correct disciplinary process before they make a decision to dismiss you. This page tells you more about the legal tests a tribunal will apply when they make a decision about whether you've been unfairly dismissed because of long term sickness.

Your long term sickness might count as a disability according to the law. If it does, it might be easier for you to argue you were unfairly dismissed. You should check if you’re disabled under the Equality Act.

What the tribunal will look for

The tribunal will look for the following things when they decide whether it's reasonable to dismiss you because you're unable to do your job because of long-term sickness. They'll want to know:

  • if your employer carried out a reasonable investigation about your condition
  • how likely it is that you could return to work
  • if your employer made reasonable efforts to explore other options, such as flexible working, adapting the workplace for your disability or finding other work for you

The tribunal will also look at the general legal tests that apply to unfair dismissal claims. These include whether your employer followed the correct disciplinary and dismissal process.

If the only reason your dismissal is unfair is because your employer didn’t follow the correct process, the tribunal might award you compensation but reduce the amount. 

If you'd have lost your job even if your employer followed the correct process, you could lose some or all of your compensation. 

You can check the reasons your compensation might be reduced.

Did your employer carry out a reasonable investigation of your condition?

An employer can dismiss you on the grounds of your ability to do the job because of long term sickness. Before they do this they should follow a fair disciplinary and dismissal process - usually this means following the Acas code. A tribunal will look at whether:

  • you were warned before you were dismissed that your employment could be ended so that you were fully aware of the seriousness of the situation

  • you were shown copies of any medical evidence and given a chance to respond to it and your employer’s views

  • you disagreed with the medical evidence. If you disagreed, could you provide your own medical evidence and did the employer take this into account?

A tribunal will also look at whether your employer looked into your medical condition to find out the likelihood of you returning to work before they dismissed you. They will want to know:

  • how long you were off work and whether your employer had an accurate record of your sick leave
  • what your employer did to get information about your medical condition
  • what any medical evidence said about your condition, including you ability to do alternative work or when you might be likely to return to work
  • whether you were due to have any further treatment that might have improved your chance of returning to work.

It's important to have medical evidence to support your claim. However, if the evidence says that it's unlikely that you'll be able to return to work at all or that you'll be absent for a long time, it will be easier for your employer to justify why they dismissed you.

If you were too ill to attend a disciplinary meeting

Your employer should have thought about:

  • postponing the meeting
  • holding the meeting somewhere more convenient for you
  • agreeing that you could supply written evidence

Did your employer make reasonable efforts to help you return to work?

A tribunal will look at what your employer could have done to make it easier for you to return to work. This could include:

  • finding you some work, such as light duties, part-time work or another job
  • making adjustments to the workplace to help you do your job if you have a disability

If an employer can show that they did these things and discussed them with you but you didn't take up the offer, they may be able to justify dismissing you.

If an employer doesn't offer to do these things and you think that it would have been possible, you should try to show the tribunal how this would have made a difference to you returning to work.

However, an employer only has to make a reasonable effort and a tribunal will also look at how big your employer is and how easy it would be to make the changes. They will also look at the extra costs, such as training you might need, to see if they would be justified.

If your employer refused to make reasonable adjustments to help you return to work, you may also be able to make a claim for discrimination.

Would your dismissal be considered within the range of responses of a reasonable employer?

The tribunal will want to know whether the decision to dismiss you was within the range of responses that a reasonable employer could be expected to make. The tribunal will look at the following things:

How long you've worked for your employer

It could be considered reasonable for your employer to put up with a year's sick leave if you've worked there for a long time, but this may be considered less reasonable if you've only been there a short time.

How your absence affects the business and other staff

Your employer should have looked at how they could cover your work while you were absent. A tribunal might ask:

  • could other staff do your work or work overtime?
  • could your employer hire a temp or use agency staff?
  • what would it cost your employer to arrange temporary cover?

How important is it for your employer to have a permanent employee?

Depending on your work situation, it may be harder for your employer to manage without you. For example, if you do skilled work, it could be difficult for them to find suitable cover. If you're one of several people doing a similar semi-skilled or unskilled job, it might have been easier to find other people to cover.

Are you likely to get better?

The tribunal will want to know whether you are likely to get better and when this would be. If you need further treatment, when would this happen? If you are likely to make a full recovery it might not have been reasonable to dismiss you.

Size of your employer

A large employer may have been able to cope better with your absence than a smaller one. Or they may have been more able to find you suitable alternative work.

If the reason you're off sick is because of your employer's negligence, it may still have been reasonable to dismiss you if you're unlikely to be fit enough to return to work and they can't offer you suitable alternative employment. However, a tribunal will look to see if your employer did everything they possibly could to help you.

You might also be able to claim compensation for your personal injury, but you’ll have to do this separately from your employment tribunal claim.

Before you start your unfair dismissal claim

You should think about how strong your claim is and think about how much compensation you might get if you win.

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