Unfair dismissal: ill-health

by Practical Law Employment

A practice note that considers when a dismissal for ill-health is likely to be fair or unfair, having regard to the statutory test for unfair dismissal under the Employment Rights Act 1996 and key principles established by case law. It examines capability as a potentially fair reason for dismissal and explores the procedural requirements for employers who need to manage cases of both long-term sickness absence and persistent short-term absences. It outlines the requirement to follow a fair procedure, including consulting with the employee and taking reasonable steps to ascertain the true medical position before making any decision. This resource also addresses the overlap with other potentially fair reasons for dismissal, such as some other substantial reason (SOSR), and considers when the Acas Code of Practice on Disciplinary and Grievance Procedures may apply. It discusses key aspects of fairness, including the relevance of an employee's sick pay entitlement and the employer's duty to consider alternatives to a capability dismissal. It also considers any potential for disability discrimination under the provisions of the Equality Act 2010.