The answer is yes, you can. And it’s a surprisingly common question.
It’s an unfortunate part of doing business, but from time to time, people need to be let go. This can be the case even when they’re away on sick leave. To be clear, we aren’t talking about redundancy here. (That can occur during sickness, but the rules are a bit different.)
We’re talking about the termination of a work contract because someone is unable to do their job or has behaved poorly. In other words - sacking them, firing them, giving them their marching orders.
There might also be other reasons they’re unable to do the job - like if it involves driving and they lose their license, or if they go to prison.
What to remember before dismissing an employee
The key thing to remember about dismissal is that there needs to be a valid, justified reason for it - and there may well be, even if the employee is off sick. Managers have to show they’ve acted reasonably given the circumstances, and kept things fair for everyone. That means they can’t dismiss someone for the same offence someone else got away with. And they need to give the appropriate amount of notice that’s in the employee’s contract.
Employees also have the right to get a written statement giving the reasons why they’ve been dismissed (if they’ve been in the job for over 2 years). For those on maternity leave, a similar statement is legally required, whatever their length of service.
Before considering a dismissal, questions need to be asked:
- Are there any reasonable adjustments that could be made to help them return to work? (This isn’t a legal necessity unless the worker has a disability, but it might be easier, and more ethical, than the alternative of firing them and hiring someone new.)
- Or is there a different position they could take up instead?
It’s also really important to keep in touch with an absent employee, to see how they’re progressing and find out if there’s anything the business can do to help.
Can you sack someone while they’re off sick?
Taking the above into account - yes, you can. It’s possible to hold disciplinary procedures with an employee while they’re off sick - including those that result in dismissal.
For example, if a worker committed an offence while at work - let’s say harassing a colleague or stealing from the business - then went off on a long-term sickness. That issue would still have to be dealt with, otherwise they could just string it out as long as possible to stay employed and keep getting paid.
Employers always have to act fairly and in line with their policies. So in examples like this, they could sensibly wait a short time for the worker to return before arranging the disciplinary. They also have to keep things legal, of course; dismissing someone because of a disability, for example, has a good chance of breaking the law. If it seems like a necessity, it’d be wise to consult a legal professional for advice.
Even if they're off sick, workers might still be able to attend disciplinary hearings, and a company should try to make reasonable adjustments to make this happen. If they can't attend, and it can't be postponed until they're well, the employer can go ahead with the hearing in their absence.
Dismissing someone on long-term sickness leave
Having a worker off sick for a long time can, of course, be a strain on the resources of any company. But it’s a natural part of doing business - sooner or later, someone’s going to be off sick, and companies have to prepare for that. Under some circumstances, though, it’s the only option.
If the worker’s prolonged absence has violated the company absence policy to a serious degree, and all procedures have been followed, then a dismissal is a valid option. As long as the company documents the reasons, follows procedure, and explores reasonable accommodations to help the employee, it’s a legitimate next step.
If you’re a worker and believe you’ve been dismissed unfairly, you can either seek legal advice, talk to the CAB, or consult your union representative. Here’s a useful guide on Gov.uk to claiming for a tribunal.