Navigating a long-term sickness absence can be one of the most challenging situations an employer faces.
On one hand, you want to be supportive and compassionate. On the other, a prolonged absence can put significant strain on your operations, productivity and the workload of other employees.
The question of when, or if, it’s appropriate to dismiss an employee on long-term sick leave is a delicate one, but it is a situation that requires a clear and legally compliant approach.
Can an employee on long-term sick be dismissed?
This is a most common question employers ask when dealing with a prolonged staff absence. The short answer is yes, an employee can be dismissed for long-term sickness.
However, it is a process with inherent legal risk and so must be handled with care. The key is that dismissal is never automatic; it is always a final and carefully considered decision with a clear evidence trail. There is no specific number of days, weeks, or months after which an employer can simply terminate employment. The law does not operate on a simple timeline.
Instead, the legal basis for dismissal is the employee’s capability to do their job. If an employee is incapable of fulfilling their role due to a long-term illness, and all other avenues for support have been exhausted, dismissal may be a viable option.
This is a very different scenario from dismissing someone for frequent, short-term absences. A long-term absence requires a focused approach on the specific medical condition and its impact on the employee’s ability to return to work, rather than a disciplinary approach to attendance. The legal framework is designed to ensure that employers act fairly and reasonably, and that any decision to dismiss is fully justified.
The legal grounds for a fair dismissal
Dismissing an employee for long-term sickness is a complex issue, but the legal grounds for a fair dismissal are well-defined.
It’s a fundamental principle that dismissal must be a last resort. For a dismissal to be legally fair, you must be able to demonstrate that you acted reasonably at every stage of the process.
Dismissal for long-term sickness is generally classified as a “capability dismissal.” This means the reason for ending the employment is that the employee’s health condition makes them unable to perform their job, rather than any form of misconduct.
The process outlined by the government is designed to be fair to both parties. For a dismissal to be legally sound, you must be able to show that you have:
- Gathered up-to-date medical evidence;
- Consulted with the employee about their condition and potential return to work;
- Explored all possible reasonable adjustments to help them return;
- Considered suitable alternative employment;
- Make a reasoned, written decision.
Step-by-step: how to ensure a fair and compliant dismissal process
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Gather reliable medical evidence
Seek up-to-date reports, ideally from an occupational health specialist, or with the employee’s consent, their GP. A fit note or formal medical assessment helps clarify recovery timelines or confirm long-term incapacity.
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Engage in meaningful consultation
Regular contact is vital: monthly or fortnightly touchpoints, through meetings or calls, are strongly recommended. Provide the employee with the opportunity to give their perspective and respond to any medical or business impact assessments.
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Explore all reasonable adjustments and alternatives
Under the Equality Act 2010, many long-term health conditions may qualify as disabilities, triggering a legal duty to consider accommodations. Adjustments could include a phased return, flexible hours, modifications to duties, or redeployment to another role.
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Document the business impact
Record how the absence affects workload, productivity, morale amongst other employees, or client service. This will strengthen the rationale for any future decision.
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Make a reasoned, written decision
If adjustments aren’t viable and return seems unlikely, communicate your decision in writing. Clearly outline reasons, confirm the right to appeal, and ensure final payments and entitlements are handled correctly.
Dismissing an employee with a long-term illness
When a long-term illness meets the legal definition of a disability, dismissing an employee becomes highly risky. A long-term illness could be classed as a disability if it has a substantial, long-term adverse effect on the person’s ability to carry out normal day-to-day activities. This can include both physical and mental health conditions, such as multiple sclerosis and cancer, to severe depression and, in some cases, long COVID.
If the illness meets this definition, a poorly handled dismissal could lead to serious claims, including unfair dismissal (if the employee has at least two years’ service), disability discrimination (no minimum service needed), and failure to make reasonable adjustments. These claims can be costly and reputationally damaging, so it’s essential to follow a lawful, well-documented process.
As with other dismissal processes for long-term illness, before anything is considered, employers should gather up-to-date medical evidence, consult with the employee, and explore all reasonable adjustments, such as amending duties, altering hours, remote working, or redeployment. If it’s clear no adjustments or alternative roles would enable the employee to continue working, dismissal on capability grounds may be lawful, but it must be objectively justified, proportionate, and supported by evidence.
Dismissing employees with a terminal illness
Making a dismissal decision about someone with a terminal illness or life-threatening condition is among the most emotionally difficult situations an employer can face. Compassion and empathy must be at the heart of every step, alongside a clear understanding of the individual’s legal rights.
It’s important to remember that terminal illness does not always mean an immediate end of life. Depending on their diagnosis and treatment, a person may live for days, weeks, months, or even years. Avoid making assumptions about what this means for their ability or desire to work. Instead, focus on understanding their personal wishes and priorities.
Some individuals may wish to remain employed so their dependants can benefit from benefits such as a death-in-service scheme. Others may find that dismissal, paired with pay in lieu of notice and any untaken accrued holiday pay, provides much-needed financial support. These are difficult but essential conversations to have before making decisions that will affect the individual and their loved ones.
From a legal perspective, many terminal illnesses will meet the definition of a disability under the Equality Act 2010. This places a duty on employers to consider reasonable adjustments, such as flexible hours, altered duties, remote working, or extended leave, to enable the employee to continue working if they wish.
If, after exploring all alternatives, dismissal becomes necessary, the process should be handled with exceptional sensitivity.
Employee unfair dismissal rights
Currently, most employees need two years’ continuous service to bring an “ordinary” unfair dismissal claim, although some dismissals, such as those linked to whistleblowing or pregnancy, are automatically unfair from day one.
The Employment Rights Bill could change this dramatically. The government’s original proposal would remove the qualifying period entirely, introducing day-one rights alongside a nine-month statutory probationary period with a lighter-touch dismissal process.
The House of Lords recently voted to replace this with a six-month qualifying period, but the government is likely to use its majority in the Commons to overturn this and push ahead with its original manifesto pledge.
The Bill would also extend the deadline for most tribunal claims from three to six months and create a Fair Work Agency with powers to enforce statutory rights and bring claims on behalf of vulnerable workers. These changes are likely significantly increase claim volumes, meaning organisations need to be prepared for them sooner rather than later.
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Next steps for HR leaders
Dismissing an employee on long-term sick leave, particularly where a terminal illness is involved, is always a difficult process involving balancing operational needs and legal responsibilities with empathy, fairness, and compliance, ensuring every decision is informed, well-documented, and respectful of the individual’s circumstances.
Getting it right protects not only your organisation legally, but also its values and reputation. If you’re facing a complex long-term sickness absence situation, expert guidance can make all the difference.
We specialise in supporting businesses through sensitive and high-risk employment matters, helping you navigate change with confidence, compassion and compliance. Get in touch to find out how we can support you.
FAQs
Employers are legally obligated to pay Statutory Sick Pay (SSP) if the employee meets the eligibility criteria. SSP is a minimum rate paid for up to 28 weeks.
It is worth noting that SSP from day-one is proposed in the Employment Rights Bill. This will entitle employees to SSP from the first day of sickness rather than day four, and only have to earn £123 a week, significantly lowering the threshold.
A “fit note” (formerly known as a sick note) is a medical statement from a healthcare professional advising on an employee’s fitness for work.
An employee can self-certify their sickness for the first seven days. However, for any absence lasting longer than seven days, a fit note is required as medical evidence. It can state that the employee is “unfit for work” or “may be fit for work” with suggested adjustments.
Yes, they can, but the same strict rules of capability and fairness apply, and often with an even greater need for care.
Many mental health conditions are considered a disability under the Equality Act 2010. This means organisations have a legal duty to make reasonable adjustments to support the employee. Dismissing an employee without properly considering these adjustments and following a fair process could lead to a claim for disability discrimination.
Organisations must make every reasonable effort to ensure the employee can participate in a formal consultation.
If they are too ill to attend an in-office meeting, organisations should consider alternatives. This could include postponing the meeting, arranging it at a location more convenient for the employee, or allowing them to provide a written statement or have a representative attend on their behalf. Simply dismissing them for not attending a meeting would almost certainly be considered unfair.
