Being dismissed while you are already unwell adds considerable stress. Understanding the legal constraints on your employer — and your own rights — is essential to protecting yourself.
The Fair Capability Process for Sickness Dismissal
A fair dismissal for long-term sickness requires the employer to follow a structured process:
| Stage | What should happen |
|---|---|
| Keeping in contact | Regular, supportive communication during absence |
| Occupational health referral | Independent medical assessment of fitness and prognosis |
| Return to work planning | Consider phased return, adjusted duties, different role |
| Formal capability meeting | You can bring a colleague or trade union rep; chance to respond |
| Decision | Dismissal only if all alternatives exhausted and return not foreseeable |
| Right of appeal | Must be offered after dismissal decision |
Skipping any of these stages significantly weakens the fairness of the dismissal.
Disability Protections
If your condition is a disability (physical or mental impairment with substantial, long-term adverse effect), the Equality Act 2010 requires:
- Reasonable adjustments — changes to role, hours, equipment, or environment to facilitate return
- No discrimination arising from disability — dismissing you for disability-related absence is unlawful unless objectively justified
- Proportionality — dismissal should be a last resort, not a first response
Courts have found dismissals unfair where employers failed to consider: part-time return, alternative roles, home working, specialist equipment, or phased rehabilitation.
Short-Term vs Long-Term Sickness
| Sickness type | Employer approach | Key risk |
|---|---|---|
| Frequent short-term absence | Absence management policy, Bradford Factor review | Must check for underlying disability before disciplinary action |
| Long-term continuous absence | Capability process, OHP report, phased return | Must exhaust reasonable adjustments |
Notice Pay During Sick Leave
If dismissed while on sick leave, you are entitled to notice pay at your full contractual rate — not at the SSP rate. If your employer tries to pay notice at the SSP rate, that may be an unlawful deduction from wages.
If You Are Dismissed While on Sick Leave — Next Steps
If you receive notice of dismissal while on sick leave:
- Request written reasons — you are entitled to written reasons for dismissal if you have 2+ years’ service, or if you are pregnant or on maternity leave
- Appeal the decision — use any internal appeal procedure in your contract before going external
- Check for disability discrimination — if your illness is a qualifying disability under the Equality Act, the employer must show they considered reasonable adjustments (phased return, modified duties, reduced hours) before dismissal
- Contact ACAS — start Early Conciliation before your 3-month deadline expires
- You are still entitled to notice pay — even if dismissed fairly, you receive your statutory or contractual notice period as pay in lieu, plus accrued holiday pay
Dismissal for long-term absence can be fair if the employer followed a proper process — including medical evidence review, consultation with you, and consideration of alternatives. Dismissal without proper process is likely unfair regardless of the underlying reason.