Dismissal in connection with illness

The inability of an employee to do a job, for whatever reason, is a valid reason for dismissal. However, the case of the employee who becomes physically or mentally unable to do his or her job because of illness, or is persistently absent from work because of illness, clearly demands special consideration. Tribunals recognise that - especially in the smaller firm - it will often not be possible for the organisation to 'carry' the ill employee, and they understand that a time comes when the employer can no longer be expected to keep open the post of an employee who is off sick.

As with the dismissals for other reasons, however, they expect the employer to have discussed the position with the employee concerned and to be absolutely sure of the facts about the employee's state of health and whether he or she is incapable of doing his or her job, or likely to be persistently absent in the future. This may involve taking medical advice about the employee's condition by talking, with the employee's permission, to his or her doctor. If there is less demanding work available which the sick employee would be capable of doing the tribunal will normally expect the employer to offer it to the employee. Employers should also note that the Disability Discrimination Act 1995 makes it unlawful for employers with 15 or more employees to discriminate against current or prospective employees with disabilities. Employers will wish to note that some people with illnesses would be covered by the definition of disability which is "a physical or mental impairment which has a substantial and long-term adverse effect on (a person's) ability to carry out normal day-to-day activities". Under the Act, an employer dismissing a disabled person, or giving them compulsory early retirement, for a reason relating to the disability, would need to be able to justify this with a substantial and relevant reason. An employer cannot justify such treatment if the reason could be removed or made less than substantial, by a reasonable adjustment. For some employers and employees, reasonable adjustments might include part-time working, some additional sick leave, redeployment to other duties, or the transfer of minor duties to another employee.
Free material on all the Act's provisions, including the booklet The Disability Discrimination Act 1995 - What Employers Needs to Know (DL170), can be obtained by calling the Disability Rights Commission Helpline on 08457 622 633 or textphone 08457 622 644.

The Government has also published a Code of Practice for the elimination of discrimination in the field of employment against disabled persons or persons who have had a disability, which is available from The Stationery Office (£9.95 ISBN 0-11-270954-0).