Can You Dismiss An Employee On Sick Leave?

Employers can lawfully dismiss an employee who is off sick, provided they have a potentially fair reason for dismissal, act reasonably in all the circumstances and follow a fair procedure.

The following guide for employers on dismissal due to sickness absence looks at what amounts to potential grounds for dismissal in this context, from conduct to capability issues, and the legal risks of getting this wrong.

We also provide some best practice tips for employers on how to effectively deal with sickness absence in the workplace.

Section A: Can You Dismiss an Employee on Sick Leave?

An employer can dismiss an employee on sick leave if they have a potentially fair reason under section 98 of the Employment Rights Act 1996, follow a fair procedure and act reasonably. Dismissal may be lawful for capability or misconduct, but employers have to consider related issues such as medical evidence, reasonable adjustments and discrimination risk.

Sickness absence does not automatically protect an employee from dismissal. However, dismissal will only be fair where it is based on a recognised statutory reason, most commonly capability or conduct, and the employer has taken appropriate procedural steps before reaching a decision.

In practice, whether dismissal is lawful will depend on:

• The reason for dismissal, such as capability due to long-term ill health or misconduct arising from unauthorised absence or dishonesty
• The medical evidence available and the employee’s likely prognosis
• Whether the employer has followed a fair disciplinary or capability procedure, and complied with the Acas Code where it applies (for example in disciplinary cases)
• Whether the employee’s condition amounts to a disability under the Equality Act 2010 and, if so, whether reasonable adjustments have been properly considered
• Whether dismissal falls within the range of reasonable responses open to a reasonable employer

Short-term sickness absence is not, in itself, misconduct. It should ordinarily be managed as a capability issue unless the absence is unauthorised, reporting procedures have not been followed or there is evidence of dishonesty.

Long-term or recurring sickness absence is generally considered under capability, with tribunals assessing whether the employer acted reasonably in concluding that the employee was unlikely to return to work or perform their role within a reasonable period.

Where the employee has a qualifying disability under the provisions of the Equality Act 2010, the employer is under a duty to make reasonable adjustments where they know, or could reasonably be expected to know, of the disability and resulting disadvantage. Failure to comply with this duty can give rise to claims for disability discrimination in addition to unfair dismissal.

A decision to dismiss an employee on sick leave therefore requires careful assessment of the medical position, the operational impact on the organisation and the procedural steps taken before dismissal. Any failure to act reasonably or to follow a fair process may expose the employer to claims for unfair dismissal, wrongful dismissal or unlawful discrimination.

Section B: How Long Before Dismissing an Employee on Sick Leave?

There is no fixed statutory period that an employer is required to wait before dismissing an employee on sick leave. The law does not prescribe a minimum length of absence after which dismissal becomes lawful. Instead, the question for a tribunal will be whether the employer acted reasonably in all the circumstances at the time the decision to dismiss was made.

In cases of long-term or recurring ill health, dismissal will usually be considered under capability. The employer should obtain up-to-date medical evidence and assess the employee’s prognosis before reaching any decision. The key issue is whether the employee is likely to return to work, or be able to perform their role, within a reasonable period.

When determining whether dismissal is reasonable, tribunals typically consider factors such as:

• The length of the employee’s absence and their overall attendance record
• The medical evidence and likelihood of recovery within a foreseeable timeframe
• The nature of the employee’s role and the impact of continued absence on the business
• The steps taken by the employer to explore reasonable adjustments or alternative roles
• The size and administrative resources of the employer

In some cases, it may be reasonable to wait for the outcome of a specific course of treatment if medical evidence indicates that recovery is likely within a defined period. In other cases, where the prognosis remains uncertain or indicates prolonged incapacity, an employer may be entitled to conclude that continued employment is not sustainable.

The absence of a fixed waiting period means that employers should avoid relying on arbitrary time limits. Instead, decisions should be based on evidence, consultation with the employee and an assessment of whether dismissal falls within the range of reasonable responses open to a reasonable employer under section 98 of the Employment Rights Act 1996.

Section C: Can You Dismiss an Employee While They Are Receiving Sick Pay?

An employer can dismiss an employee while they are receiving Statutory Sick Pay (SSP) or contractual sick pay, provided there is a potentially fair reason for dismissal and a fair procedure has been followed. There is no rule preventing dismissal simply because an employee is in receipt of sick pay.

Eligibility for SSP is governed by the Social Security Contributions and Benefits Act 1992 and associated regulations. From 6 April 2026, SSP rules change, including removal of waiting days and updated rate calculation, so employers should apply the rules in force at the time of the absence.

An employee who meets the qualifying conditions may be entitled to SSP for up to 28 weeks. However, entitlement to SSP does not prevent an employer from initiating or completing a capability or disciplinary process during that period.

Where contractual sick pay is provided under the employment contract or a sickness policy, the employer should ensure that any dismissal complies with the contractual terms. Failure to do so may expose the employer to a claim for breach of contract or wrongful dismissal.

If dismissal occurs during a period of sick leave, the employee will normally be entitled to statutory or contractual notice, unless dismissal for gross misconduct justifies summary dismissal. Where notice is given, the employer should consider whether notice pay is payable at the employee’s normal rate of pay or at the rate of sick pay, taking into account statutory notice pay rules and any contractual terms, as the rate payable can differ depending on the circumstances.

Employers should also ensure that the decision to dismiss is based on capability or misconduct and not on the mere fact that the employee is receiving sick pay. A dismissal that is motivated by absence connected to a disability, without proper consideration of reasonable adjustments or objective justification, may give rise to claims for disability discrimination in addition to unfair dismissal.

Section D: Additional Legal Risks and Procedural Considerations

When dismissing an employee who is on sick leave, employers should also consider overlapping statutory protections and wider litigation risks beyond ordinary unfair dismissal.

1. Pregnancy-Related Sickness Absence

Where sickness absence is related to pregnancy, additional legal protections apply. Under the Equality Act 2010, unfavourable treatment because of pregnancy or a pregnancy-related illness may amount to unlawful discrimination. Dismissal in these circumstances can also carry significant litigation risk and, depending on the reason for dismissal, can amount to automatically unfair dismissal.

Employers should therefore ensure that pregnancy-related absence is not treated in the same way as ordinary sickness absence for attendance management or disciplinary purposes and that any decision-making is carefully documented and objectively justified.

2. Disability-Related Absence and Attendance Management

Where an employee’s sickness absence is caused by a qualifying disability within the meaning of section 6 of the Equality Act 2010, employers should take particular care when applying attendance management procedures. There is no automatic rule requiring all disability-related absence to be disregarded. However, the duty to make reasonable adjustments under sections 20–21 of the Equality Act 2010 may require modification of attendance policies where the disabled employee would otherwise be placed at a substantial disadvantage.

In practical terms, this can include considering whether it is reasonable to adjust absence trigger points, extend review periods or discount some or all disability-related absences before issuing warnings or progressing to dismissal. What is reasonable will depend on the medical evidence, the frequency and duration of the absences, the operational impact on the business and the size and resources of the employer.

Employers should also note that dismissal because of absence arising from disability may amount to discrimination arising from disability under section 15 of the Equality Act 2010, unless the employer can show that the treatment was a proportionate means of achieving a legitimate aim. Employers should therefore identify clearly the business reasons for any dismissal decision and ensure that alternatives, including adjustments or alternative roles, have been properly considered and documented.

A failure to consider whether disability-related absence should be treated differently from ordinary sickness absence can expose the employer to claims for failure to make reasonable adjustments and discrimination arising from disability, in addition to unfair dismissal.

3. Employee Is Too Ill to Attend Meetings

In some cases, an employee may be medically unfit to attend disciplinary or capability meetings in person. Employers are expected to act reasonably in these circumstances. This may involve postponing meetings for a short period, obtaining further medical evidence regarding fitness to participate, offering remote attendance or allowing written representations.

An employer is not required to delay proceedings indefinitely where there is no clear indication that the employee will be fit to engage within a reasonable timeframe. Provided reasonable adjustments to the process have been offered and considered, an employer may be entitled to proceed in the employee’s absence, particularly where medical evidence has been obtained and shared.

4. Constructive Dismissal Risk

Poor handling of sickness absence can also expose an employer to claims of constructive unfair dismissal. If an employer acts in a manner that amounts to a fundamental breach of the implied term of mutual trust and confidence, such as by applying undue pressure to return to work prematurely or failing to follow established procedures, the employee may resign and claim constructive dismissal.

Careful documentation, consistent application of policies and evidence-based decision-making are therefore critical in managing both direct dismissal risk and indirect exposure arising from alleged breaches of contract.

Summary

An employer can dismiss an employee on sick leave, but only where there is a potentially fair reason under section 98 of the Employment Rights Act 1996 and a fair procedure has been followed. There is no fixed period an employer has to wait before dismissal.

Short-term absence may justify action in cases of misconduct, such as unauthorised absence, while long-term sickness is usually considered a capability issue. Employers should obtain medical evidence, assess prognosis and consider reasonable adjustments where disability may apply.

Mishandling sickness absence can expose employers to unfair dismissal, wrongful dismissal and disability discrimination claims.

Need assistance?

DavidsonMorris’ HR and employment law specialists work with employers to support with compliant and effective workforce management. We can advise on issues such as sickness absence and how policies and documentation should be used to help manage risks and foster positive working cultures. For expert advice, contact us.

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