Can I be dismissed for being ill?

Unfortunately, the short answer is, yes. However, as a recent case illustrates it is rarely a straightforward matter. If an employee is incapable of carrying out his or her job through ill health either because of an on-going series of short term absences or because of a single lengthy absence then if handled correctly by the employer, the employee can be dismissed.

 

In a recent employment appeal involving Monmouthshire County Council, consideration was given to a disabled employee who had been on 6 months continuous sickness absence. The employer had not handled it well procedurally and at the first hearing before the appeal the employee was successful. However, this was overturned on appeal because the Employment Judge had not given enough weight to the central issue which was whether a reasonable employer would have waited longer before dismissing.

 

In this particular case the employer failed to wait for further medical reports which are almost always required in such a situation. However those reports were gloomy about a future return to work when they were received and therefore the earlier failure to wait to receive them was found to be academic.

 

The case makes clear the need to consider the actual medical position at the date of dismissal because if the employee cannot show that he or she will be able to return to work in the foreseeable future a dismissal may be seen as fair.

 

Many other considerations including what caused the ill health should be taken into account and whenever in doubt legal advice should be sought before taking action.

 

Employment law is notoriously complex and fast changing. At WSP Solicitors we have wide-ranging experience, case expertise and tactical insight to help you understand and apply it. For legal advice on employment law please call 01453 847200 to discuss your personal circumstances.

 

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