Ill health unfair dismissal: a guide for employees

This guide also outlines some of the procedures that employers often fail to observe.

You can use these failings to persuade your employer to settle your compensation claim with a settlement agreement before you consider taking your claim to an employment tribunal.

Read it alongside our main guide on unfair dismissal and also Mental health absence and dismissal from work.  Explore our other related guides, links to which are highlighted throughout this guide.

What is ill health unfair dismissal?

Ill health unfair dismissal means being dismissed from your employment for reasons to do with your ill health.

The reasons could be because of frequent or long-term sickness absences or because your mental health issues or physical health condition mean you can no longer perform your job role fully or properly.

If you are unfairly dismissed for ill health (or indeed any other reason) then, providing you have the evidence to support it, you could make a claim for compensation in an employment tribunal.

However, if you can settle the matter out of court by way of a settlement agreement, it will save you the time, effort, stress and expense of taking your claim to a tribunal.

Having said that, if your employer thinks you may take your case to a tribunal and win it, that is often sufficient incentive for them to agree to settle.

A settlement would also save them significant legal costs and management time associated with a tribunal case.

 

Who can make an unfair dismissal claim?

To make a claim for any kind of unfair dismissal, including dismissal for reasons of ill health, you need to fulfil at least the following three basic conditions:

• To have been an employee at the time of your dismissal
• To have 2 years’ continuous service with the employer who dismissed you (although there are some exceptions to this rule)
• To have good evidence to support your claim

 

See our main guide on Unfair dismissal for further detail about the above.

Was your ill health condition a disability?

If your ill health condition was considered to be a disability at the time of your dismissal, then your dismissal may also give rise to a claim of disability discrimination.

The Equality Act 2010 defines a disability as ‘a physical or mental impairment which has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities’.

• ‘substantial’ is more than minor or trivial, eg it takes much longer than it usually would to complete a daily task like getting dressed;
• ‘long-term’ means 12 months or more, e.g. a breathing condition that develops as a result of a lung infection.

 

See our guides on disability discrimination and discrimination compensation for further detail.

Was your ill health condition short term or long term when you were dismissed?

It matters whether your ill health condition was short term or long term when you were sacked.

That’s because your employer would be expected to have taken different steps to support you, depending on the length or likely length of your illness and associated absence from work.

What would be counted as a short term illness?

There is no legal definition of the length of a short term illness, but for the purposes of this guide, we regard such an illness as one that resulted in or was likely to result in, a continuous absence from work of less than three or four weeks.

The illness could be a short term one-off illness (e.g. a heavy cold, flu, bronchitis, a minor operation) or short term and recurrent (e.g.headaches, migraines, or musculoskeletal problems like back pain).

It might be curable or at least controllable with suitable medication or other therapies but be likely to recur and result in further short absences.

For example, as might be experienced by people with non-chronic anxiety or stress.

What is a long term illness?

A long-term illness, including chronic health conditions, would typically be likely to last for more than a few months.

It may involve your absence from work for continuous periods of several weeks or even months at a time.

Examples include severe asthma, cancer, diabetes, kidney or heart disease or serious mental health conditions.

 

What are fair procedures for dealing with short term ill health absences?

You should have been given the opportunity to explain your absences and to improve them using a review and warning process.

A review and warning process is where an employer:

• reviews your absences with you over a given period of time (typically three months)
• warns you if your absences are becoming a problem for the business
• gives you time to improve

before they take action that could lead to your dismissal.

 

What procedures should be followed for long term ill health and absences?

The requirements placed on your employer to support you in the case of long term ill health and related absences are far more demanding than for short term ill health. They include the following:

Investigations into your ill health condition

Your ill health condition should have been investigated by your employer prior to your dismissal.

Such an investigation would typically include your employer asking for one or more of the following: your medical records, a GP medical report, an occupational health report.

Consultations about your ill health condition

You should have been consulted about the effects of your health on your role and whether, with reasonable adjustments, the role could have been continued.

Offering you alternative role(s)

If there were any other, more suitable, roles within the organisation, you should have been told about them and given a fair opportunity to apply for them prior to being dismissed.

Keeping your role open for you

An employer can decide, based on business need, whether to keep a role open for you if you are on sick leave, or to fill it with someone else.

Keeping it open might enable you to recover from your ill health or find suitable means of controlling it, and to resume your role.

However, employers sometimes don’t keep the role open, or else they only keep it open for a few weeks, when they in fact could have kept it open for longer without detriment to the business.

What written warnings should you have received before you were dismissed?

After following the procedures outlined above your employer should have given you a first written warning and a final written warning before you were sacked.

However, sometimes even that in itself is not sufficient, as outlined below.

First written warning

If the procedures outlined above for dealing with your ill health were followed, but you were not issued with a first written warning about the adverse effects of your ill health on your role, then your dismissal would probably be considered unfair.

Sometimes employers fail to follow the procedures outlined above, but still issue you with a first written warning about the adverse effects of your ill health on your role.

If that happened, it could be argued that the decision to issue you with a first written warning was itself unfair and that the warning was not valid.

This would also give you grounds for a claim of unfair dismissal.

Final written warning

If you weren’t issued with a final written warning before you were sacked for ill health reasons, then your dismissal is also likely to be regarded as unfair

You may have been given a final written warning.

However, if none of the procedures outlined earlier had been followed, and/or you had not received a first written warning then the decision to dismiss you is also likely to be unfair and you should appeal it.

Summing up on guidance about ill health unfair dismissal

The main conclusions to be drawn from the above discussion can be summarised as follows:

1. Failure to follow proper ill health dismissal procedures is unfair

The main message to come from the discussion about procedures and written warnings for ill health is this: if the proper procedures weren’t followed, then the likelihood is that any warnings were awarded unfairly.

Similarly, if your employer failed to give you written warnings, or failed to give you the correct number of written warnings, then the decision to dismiss you is also unfair and you should appeal against it.

See our guide on appeals for further information on how to make an appeal.

2. Try to settle your unfair dismissal with a settlement agreement

This means that you probably have a case to claim for unfair dismissal at an employment tribunal.

But before you take the employment tribunal route, try asking for fair compensation by way of a settlement agreement.

See our guides on settlement agreements and on settlement agreement negotiations for guidance. Also, try our calculator to get an estimate of how much you should seek in compensation from your employer.

3. Take your unfair dismissal case to an employment tribunal

If your employer won’t settle and if you haven’t already submitted an employment tribunal claim, now is the time to do so before it’s too late.

See our guides on your journey through the employment tribunal system and on making a tribunal claim for further detail.

 

Next steps

Monaco Solicitors are experts in employment law – we only practise employment law.

We also only ever work with employees, not employers, so we can put all our efforts into supporting you and never have any conflict of loyalties.

We have years of successful experience of helping people like you who have been unfairly dismissed for ill health reasons.

So if you are having problems at work because of your ill health condition, why not get in touch and see if we can help you?

Contact us:

• Via this link
• By phone on 020 7717 5259
• Email: communications@monacosolicitors.co.uk