How to Dismiss an Employee on Sick Leave: Employer Guide
Yes, you can dismiss an employee who is off sick, but it is one of the highest-risk dismissal situations an employer faces. This guide covers capability dismissal, the medical evidence you need, reasonable adjustments, disability risk, and what ERA 2025 changes about SSP and absence management.
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ERA 2025 Updated
North West BasedYou can dismiss an employee on sick leave, but only after following a careful, evidence-based process. The legal basis is almost always capability: the employee is unable to perform the role due to ill health. Before dismissal is considered you must obtain medical evidence, explore reasonable adjustments, consider alternative roles, and consult the employee. Getting this wrong risks both an unfair dismissal claim and an uncapped disability discrimination claim. From April 2026, SSP is payable from day one of absence, making absence management processes more important than ever.
Can You Dismiss an Employee Who Is Off Sick?
Yes. Being on sick leave does not give an employee immunity from dismissal. An employer can lawfully dismiss an employee who is off sick provided there is a potentially fair reason under the Employment Rights Act 1996 and a fair procedure has been followed.
In practice there are two distinct situations, and they require different approaches:
Long-Term Sickness Absence
Where an employee has been off work continuously for an extended period, typically four weeks or more, and there is uncertainty about when or whether they will return. This is managed as a capability issue. The employer must gather medical evidence, explore reasonable adjustments and alternative roles, consult the employee, and reach a reasonable, evidence-based conclusion about whether continued employment is viable.
Persistent Short-Term Absence
Where an employee repeatedly takes single days or short periods off sick. This is managed differently, more like an attendance conduct issue, but still requires a fair process, clear communication, and documented warnings before dismissal is considered.
The two situations carry different risks and require different processes. Conflating them is one of the most common mistakes North West employers make.
Dismissing for Long-Term Sickness: The Process
Long-term sickness dismissal is a capability dismissal under the Employment Rights Act 1996. The legal question is not whether the employee is genuinely ill. It is whether the employer acted reasonably in concluding that the employee was unlikely to return to work or perform their role within a reasonable period.
Maintain Regular, Reasonable Contact
From the start of any long-term absence, maintain regular and structured contact with the employee. The purpose is to keep in touch, understand how they are, and discuss return to work prospects, not to pressurise. Document every contact. Gaps in contact during a long absence weaken the employer’s position significantly if the matter goes to tribunal.
Obtain Medical Evidence
You cannot make a defensible capability decision without medical evidence. This means requesting a report from the employee’s GP or, better, an independent occupational health assessment. You need the employee’s consent to approach their GP. An occupational health referral does not require consent but should still be discussed with the employee. The evidence you need: the nature of the condition, the likely prognosis, the expected return date, and whether any reasonable adjustments could enable a return.
Explore Reasonable Adjustments
Where the employee’s condition may amount to a disability under the Equality Act 2010, broadly any physical or mental impairment that has a substantial long-term effect on normal day-to-day activities, the employer has a legal duty to make reasonable adjustments. This is not optional. Failing to consider adjustments before dismissing a disabled employee significantly increases the risk of an uncapped disability discrimination claim. Reasonable adjustments might include a phased return, amended duties, altered hours, changed location, or redeployment to a different role.
Hold an Absence Review Meeting
Before any dismissal decision is made, hold a formal absence review meeting with the employee. They have the right to be accompanied by a colleague or trade union representative. Present the medical evidence you have obtained and give the employee a genuine opportunity to respond: to dispute the medical evidence, to propose their own return to work plan, or to raise matters you may not have been aware of. Document the meeting in full.
Consider All Options Before Dismissal
Dismissal must be a last resort. Before reaching that decision the employer should have genuinely considered: a phased return to work, reduced hours on a temporary basis, redeployment to a suitable alternative role, further time for recovery if medical evidence indicates improvement is likely. Document that you have considered and, where appropriate, offered each of these options.
Follow the Full Dismissal Process
If, after completing all of the above, the conclusion is that continued employment is not viable, the employee must still be invited to a formal hearing, given the opportunity to respond to the proposed dismissal, and offered a right of appeal. The dismissal letter must state the reason, the notice period, and the final date of employment. All entitlements, including notice pay, accrued holiday and SSP, must be calculated and paid correctly.
Dismissing for Persistent Short-Term Absence
Persistent short-term absence, where an employee who repeatedly takes single days or short periods off sick, is a different situation from long-term absence. It is managed more as an attendance conduct issue, though the same underlying principles of fairness apply.
Return to work interviews
Conducted after every absence, consistently, documented, and used to identify any underlying pattern or cause. If there is an underlying medical condition causing the absences, that changes the approach significantly.
Absence management triggers
An absence management process with clear trigger points. Many employers use a Bradford Factor or similar to identify when absence levels become unsustainable and trigger a formal review.
Formal staged warnings
A first written warning when absence reaches a trigger level, a final written warning when it continues, and then consideration of dismissal if the pattern does not improve despite warnings.
Investigate underlying conditions
Check whether there is an underlying medical condition before proceeding to dismissal. If there is one, the process may need to shift toward the long-term absence capability route.
If the employee is disabled, reasonable adjustments must be considered. Dismissing for persistent absence caused by a disability without exploring adjustments is disability discrimination.
The Disability Risk You Cannot Ignore
The single biggest legal risk in sick leave dismissals is disability discrimination. Under the Equality Act 2010, a disability is broadly defined: any physical or mental impairment that has a substantial long-term adverse effect on the ability to carry out normal day-to-day activities. Many conditions that cause prolonged absence meet this definition: depression, anxiety, long-term back conditions, heart conditions, cancer, MS, diabetes.
Disability discrimination claims carry two critical differences from unfair dismissal claims:
No Qualifying Service Period
An employee can bring a disability discrimination claim from day one of employment. There is no two-year threshold and no six-month threshold. Even a new employee on sick leave can bring a discrimination claim if the dismissal process did not properly consider their disability.
No Compensation Cap
Unfair dismissal compensation is currently capped (removing from January 2027). Disability discrimination compensation is uncapped. A successful claim can result in awards far exceeding the unfair dismissal cap, including injury to feelings awards on top of financial loss.
Before dismissing any employee whose absence is related to a health condition, the question must be asked: could this condition amount to a disability? If there is any doubt, treat it as a disability and follow the reasonable adjustments duty before proceeding.
ERA 2025 Changes Absence Management for Every North West Employer
SSP from day one of absence. The three-day waiting period is abolished. SSP is now payable from the first day of sickness absence for all eligible employees regardless of earnings. The Lower Earnings Limit is removed. 1.3 million additional low-paid workers now qualify for SSP. Every absence now has an immediate cost.
Unfair dismissal protection after 6 months’ service. Every sick leave dismissal carries full unfair dismissal risk after six months’ service. The two-year qualifying period is gone. Build your absence management and capability dismissal processes now.
The habits you build now are the ones that protect you after 2027. DaisyHR advises North West employers on absence management and capability dismissals every day.
Read our full ERA 2025 guide for North West employersFrequently Asked Questions
There is no fixed time period after which dismissal automatically becomes lawful. The question is whether you have followed a fair process: obtained medical evidence, explored reasonable adjustments, consulted the employee, and reached a reasonable conclusion. Three months of absence may or may not be sufficient time for a defensible dismissal depending on the nature of the condition, the medical evidence, and the impact on the business. Always get advice before making a dismissal decision at any stage of a long-term absence.
To approach the employee’s GP for a report, yes, you need their written consent under the Access to Medical Reports Act 1988. An occupational health referral does not technically require consent, but it is good practice to discuss it with the employee first. If an employee refuses to consent to medical evidence being obtained, you can still make a decision based on the information you have, but document that you sought evidence and the employee declined.
A reasonable adjustment is a change to working arrangements that removes or reduces a disadvantage a disabled employee faces because of their disability. What is reasonable depends on the employer’s size, resources, and the nature of the role. Examples include a phased return, reduced hours, amended duties, different location, or redeployment. You must genuinely consider adjustments, you do not have to make every possible adjustment, but you must be able to show you properly considered them before deciding dismissal was the only option.
Yes. If an employee on sick leave commits gross misconduct, for example, evidence emerges of dishonesty, or they are found to be working elsewhere while claiming to be ill, you can dismiss for misconduct following the normal disciplinary process. The fact they are on sick leave does not prevent a misconduct dismissal. You must still investigate properly and follow a fair procedure.
The employee is entitled to their contractual or statutory notice, whichever is higher. If the employee is incapable of working during the notice period they are entitled to full pay during notice unless there is a specific contractual provision. This is a common area of error. Failing to pay full notice pay to someone dismissed on sick leave is a wrongful dismissal risk on top of the unfair dismissal risk.
SSP does not continue after employment ends. However, the employee may be entitled to full notice pay, not SSP, during their notice period even if they remain too ill to work. Calculate notice pay carefully and take advice if you are unsure.
Dismissing a pregnant employee is one of the highest-risk scenarios in employment law. Pregnancy-related dismissal is automatically unfair regardless of service length and carries no compensation cap. If the sick leave is pregnancy-related, the dismissal risk is dramatically higher than for standard capability dismissals. Do not proceed without specific advice.
Yes, every time. Sick leave dismissals carry a combination of unfair dismissal risk and disability discrimination risk that makes them more legally complex than most other dismissal types. DaisyHR advises North West employers on capability dismissals daily. Call us before you make any decision.
Get Dismissal Advice From a North West HR Consultant
Dismissal is the area where North West SMEs face the most tribunal risk, and where getting advice early makes the biggest difference to the outcome. Book a free 30-minute consultation. We will assess the situation, tell you what the risk looks like and advise on the right course of action before you make any final decision.
Dismissal advice for employers across Bolton, Manchester, Wigan, Warrington, Salford, Stockport, Bury, Rochdale, Preston, Lancaster, Cheshire and the wider North West. · Last reviewed: March 2026