Can an employee be dismissed while on sick leave?

In this guide, we will discuss “Can an employee be dismissed while on sick leave?”, the procedures an employer needs to consider when assessing your health, the relationship between sick leave and disability, what is considered an unfair dismissal, how to claim after unfair dismissal, valid reasons for a fair dismissal and reasons automatically considered for an unfair dismissal

Can an employee be dismissed while on sick leave

Can an employee be dismissed while on sick leave is a very common question, and to be honest, who hasn’t been sick on occasion? it is inevitable.

However, long periods of sick absence can cause problems for employers but dismissing an employee on reasonable grounds is a sensitive topic.

Dismissing an employee due to long-term sickness is not taken lightly by employers because it can leave the possibility of an employee claiming unfair dismissal.

This means employers are extra careful when following procedures that show their support to the absent employee (in some cases).

As part of the supportive measures, when an employee is absent on long-term sick leave, employers need to keep in contact with them but it doesn’t mean they need to call them every day and ask when they will be back.

However, it is important for employers to care for their employee’s prognosis and when they think they will be able to go back to work.

Assessing the employee’s health

Before an employer takes a legal action to dismiss an employee, they are obliged to:

• Look for ways to support you. For instance, assessing whether your job is the one making you ill or exacerbating the symptoms, and how they can go about making adjustments/changes.
• Give you (a reasonable amount of) time to recover from the illness.
• Get medical reports with your diagnosis and prognosis. This can also indicate how your sickness affects you at work and what can be done to help you.

Sick leave and disability

According to the Equality Act 2010, your condition could be among the disability category.

You may not see or perceive yourself as a disabled person but your employer can legally class your condition as having a disability.

If it is your case then you have the right not to be discriminated against, making it unlawful for your employer to dismiss you just on the grounds of having a disability.

However according to springhouselaw.com, “This does not prevent you from being dismissed because you have been absent with your disability, however, because in this case, your employer can do so if they can legally justify the action. This means that they will need to show that the action taken to dismiss you is proportionate and meets a legitimate business need.”

Unfair dismissal?

As an employee that has been working for the same company for more than 2 years, your position will be considered to be different than those with a shorter tenure.

This means tenured employees are protected against unfair dismissal.

To avoid unfair dismissal your employer will need:

• Your updated medical report.
• Explore all options with you, changes, and adjustments that can be made to your workplace.
• Involving employees in their decision-making process.

Unfair dismissal claim

You have been dismissed by your employer and you consider it to be unfair, you ask “now what?”.

Well, a dismissal is considered to be unfair unless proven otherwise by your employer.

According to citizensinformation.ie, “if you qualify to bring a claim and there was a dismissal, your employer has to prove that the dismissal was a fair one, that is, that there were fairgrounds for the dismissal and that fair procedures were followed.”

If you have worked at least 13 weeks for your employer and you have been dismissed, you are entitled to a statutory minimum period of notice, but your employment contract may provide a different period notice.

Under the legislation, you can request your employer an explanation as to why you have been dismissed, where your employer should do so within 14 days of your initial request.

Fairgrounds for dismissal

Your employer needs to justify your dismissal by showing that it is connected with one or more potentially fair grounds set out in the legislation.

Moreover, they need to show that fair procedures were followed and must have acted fairly and need to disprove any allegations by you that your actual case against them involves any of the automatically unfair reasons for dismissal.

Reasons for dismissal

Your employer could give one or more of the following reasons for dismissing you:

Capability 

This includes lateness, absenteeism, and persistent absence due to illness or injury (short or long-term).

If the first and second are an issue, your employer needs documented proof of their allegation and that you were made aware of the problem.

Records may include clocking-in records with absenteeism that are not medically certified and your employer will want to show you were warned as to the consequences.

Dismissed while being off sick

Each case will be treated separately and on its own merits where your tenure, previous record, and the importance of your job will be taken into consideration.

Short term illness “generally occurs where you have a medical problem that results in frequent absences for short periods from the workplace.”

On the contrary, “a long-term absence, your employer will be expected to get detailed medical evidence that an early return to work is unlikely. There is no set period of absence by which it can be said that a dismissal will or will not be considered reasonable.” your employer may ask you to go to their own medical expert to contrast the evidence you have and the one recolected by the expert estimating a possible return date and most likely will be asking for the professional opinion on whether you should keep working for them or not.

Competence

This refers to your ability to do your job, on the job you were initially hired to perform.

Also, if you fall short of the required standard, your employer must explain this to you through a formal procedure and specify what improvements are necessary.

Qualifications

This can happen in two ways,  the first would be that you have misled your employment about the type of qualifications you initially had when applying for the job and the second would be that your employer made your continued employment conditional upon getting further qualifications but you have failed to achieve it.

Conduct

This covers a large area of behavior and a distinction needs to be made between gross conduct (i.e. assault, drunkenness, stealing, bullying, a breach in employer’s policies/practices) and ordinary instances of misconduct.

Redundancy

This can occur if you lose your job due to circumstances such as the closure of the business or a sudden reduction of the staff.

Contravening law

This refers to being dismissed if you have been breaking the law, meaning the dismissal would be justified.

Unfair dismissal: reasons

There are certain reasons that can automatically be considered under the “unfair dismissal” category, such as (citizensinformation.ie):

• Membership or proposed membership of a trade union or engaging in trade union activities, whether within permitted times during work or outside of working hours Religious or political opinions
• Legal proceedings against an employer where an employee is a party or a witness
• Race, color, sexual orientation, age or membership of the Traveller community
• Pregnancy, giving birth or breastfeeding or any matters connected with pregnancy or birth
• Availing of rights under legislation such as maternity leave, adoptive leave, paternity leave, carer’s leave, parental or force majeure leave
• Unfair selection for redundancy

How can I make a claim for unfair dismissal?

• You need to make the claim within 6 months of the date you were dismissed but it can be extended to 12 months if there was a reasonable cause. 
• If you do qualify, you can bring your claim to the Workplace Relations Commission using the online complaint form on the website workplace relations.ie. The complaints will be assigned to an adjudication officer for hearing.
• All of the decisions of an adjudication officer can be appealed to the labour court.

Why is this blog about Can an employee be dismissed while on sick leave important?

This is a very sensitive and important topic that makes many employees worried that they could spontaneously lose their jobs just for being on sick leave (short or long term).

However, we have talked about what an unfair dismissal means, mentioned how there needs to be a procedure followed by your employer, the reasons of fair dismissal, and the reasons that automatically make a dismissal unfair.

If you think you are about to get dismissed or you have been already dismissed for being sick then you have the tools to file a claim for unfair dismissal.

Please feel free to leave any comments or thoughts about the content of this article!

Frequently Asked Questions (FAQs) about Can an employee be dismissed while on sick leave

References 

Power, B. (2020, Jan.) Can I be sacked while on sick leave?. Retrieved from springhouselaw.com.

Citicenzinformation.ie: “Fair grounds for dismissal”