Dismissed for sickness absence — when it becomes unfair dismissal

Employers can dismiss for long-term sickness absence, but only after following a fair procedure: getting medical evidence, consulting you, considering adjustments, and treating you consistently. Skip any of those steps and the dismissal falls apart.

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Can my employer dismiss me while I am on sick leave?

Yes, legally an employer can dismiss you while on sick leave, but they must follow a fair process. They must investigate the medical position, consider adjustments, and consult with you. Dismissal without following these steps is likely unfair.

How long does an employer have to keep my job open when I am off sick?

There is no fixed legal time limit. It depends on the nature of your role, the size of the employer, and whether the absence is likely to continue. Courts have found dismissals unfair after only a few months, and fair after longer periods — it depends on the facts.

Does my disability affect whether dismissal for sickness is fair?

Yes, significantly. If your absence is linked to a disability, your employer has a duty to make reasonable adjustments before dismissing. Dismissal without considering adjustments is likely to be both unfair dismissal and disability discrimination.

What is the time limit to claim unfair dismissal for sickness absence?

You must present your claim to the Employment Tribunal within 3 months less one day of the effective date of termination. ACAS Early Conciliation can pause the clock, but do not delay.

Do I need two years of service to claim unfair dismissal for sickness absence?

Generally yes, you need two years of continuous employment to claim unfair dismissal. However, if your dismissal was linked to a disability, you can claim disability discrimination from day one, with no qualifying period.

Sick Leave & Dismissal

Dismissed for sickness absence — when it becomes unfair dismissal

Last updated: April 2026

Time limit from dismissal to file your tribunal claim

Disability discrimination claims need no qualifying period

Required for standard unfair dismissal (not disability claims)

When can an employer fairly dismiss for sickness absence?

Sickness absence can be a fair reason for dismissal under the Employment Rights Act 1996

— it falls within the "capability" category. But a potentially fair reason is only half the test. The employer must also show they acted

in treating it as sufficient to justify dismissal.

Employment tribunals apply a test known as the "band of reasonable responses" — would a reasonable employer in the same circumstances have dismissed? The burden is on you to show they stepped outside that band.

The procedural steps a fair employer must follow include:

• Obtaining up-to-date medical evidence (GP report or occupational health assessment)
• Holding a capability meeting — with proper notice and the right to be accompanied
• Consulting you about your prognosis and any adjustments that might help
• Considering whether alternative roles exist before dismissing
• Warning you that dismissal is a possibility before it happens
• Giving you a right of appeal against the decision

East Lindsey District Council v Daubney

[1977], which confirmed that before dismissing on capability grounds, employers must make sufficient enquiries, consult with the employee, and consider all available options.

Short-term intermittent absence vs long-term absence

Short-term intermittent absence

Recurring short periods of sickness — e.g. taking several days off each month. Employers usually manage this through an attendance policy with trigger points. A fair process here involves:

• Return-to-work interviews after each absence
• Formal warnings with targets and review periods
• Consideration of whether absences relate to a disability
• Consistent application across all employees

Long-term continuous absence

One continuous period of sick leave, often for a serious condition. The employer must not dismiss prematurely. They should:

• Obtain a medical prognosis — when is return likely?
• Consider phased return or adjusted duties
• Keep in regular contact (without harassing you)
• Not dismiss without a genuine capability reason

If your illness is a disability — this changes everything

Under the Equality Act 2010,

a physical or mental impairment is a disability if it has a "substantial and long-term adverse effect" on your ability to carry out normal day-to-day activities. "Long-term" means it has lasted, or is likely to last, at least 12 months.

If your sickness absence relates to a disability, your employer must:

• Make reasonable adjustments
• — changes to the role, hours, location or equipment that would allow you to return
• Not treat you unfavourably
• because of something arising in consequence of your disability (s.15 Equality Act)
• Not apply a provision, criterion or practice
• that puts disabled people at a particular disadvantage without justification

Dismissing a disabled employee without first exploring reasonable adjustments is almost certainly both unfair dismissal and disability discrimination. Crucially, there is

no two-year qualifying period

for discrimination claims — you can bring them from day one.

Common conditions tribunals have recognised as disabilities:

Depression, anxiety, PTSD, chronic fatigue syndrome (ME), fibromyalgia, Crohn's disease, Parkinson's, cancer (from diagnosis), multiple sclerosis, diabetes (with substantial effect), severe migraines, and many others. The key is the effect on daily activities, not the label.

Statutory Sick Pay and your pay entitlement

Statutory Sick Pay (SSP) is payable from your first day of absence — the 3-day waiting period was abolished on 6 April 2026, and the lower earnings threshold was removed at the same time. SSP is currently £118.75 per week (2026/27) and is paid for up to 28 weeks.

If you are dismissed while receiving SSP, your employer must provide you with an SSP1 form explaining why SSP has stopped, so you can claim Employment and Support Allowance instead.

Some employers offer contractual sick pay (CSP) on top of SSP — check your contract. If you are dismissed before exhausting your contractual sick pay entitlement without cause, this may be a breach of contract as well as unfair dismissal.

What to do if you have been dismissed for sickness

Common questions about sickness dismissal

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