Tuesday Q&As

19.12.23

• Can I be dismissed whilst on sick leave?

• Different pay for people doing the same job. Is that right?

• How do we work together after a grievance has been raised?

• Changes to terms after secondment

• Compensation after some grievance issues upheld

• Can my employer change my employment terms after a TUPE transfer 6 years ago?

• Overpayment of wages

• What is the law surrounding bad references?

• Overpayment of wages

• Dismissal rights and short service. Do I have any?

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Can I be dismissed whilst on sick leave?

Q. I have worked at my company for 10 years. I get paid 3 months full pay for sick leave and then a further 3 months half pay.
I haven’t been on the sick this year that I can recall or if I have I used my holidays.
I have been off for 6 weeks and have received a letter for a meeting which arrived today but the meeting was for tomorrow.
I have the flu so I called to say I wouldn’t be able to make it and the manager was fine with me calling to re arrange when I’m feeling better.
I’m just wondering if I can be sacked ?
I have a sick note up until 06/02/24 for anxiety.

Can they sack me if I have a sick note ?

A. It's important to understand your rights and the legal framework surrounding sickness absence in the workplace. Employees are entitled to Statutory Sick Pay (SSP) if they meet certain conditions, and many employers offer additional sick pay arrangements, like your situation of 3 months full pay followed by 3 months half pay.

If you have been off work due to sickness and have provided a sick note (or 'fit note' as it's officially known), your employer is generally aware that you are legitimately absent due to health reasons. The fit note is a key document as it provides proof of your medical condition and the doctor's advice on your fitness for work.

Regarding the possibility of being sacked while off sick, there are several factors to consider:

• After 10 years of service, you have substantial employment rights, including protection from unfair dismissal. This means your employer must have a fair reason (such as conduct, capability, redundancy, breach of a statutory duty, or "some other substantial reason") and follow a fair process before dismissing you.

• If your absence is due to health reasons, your employer may address this under a 'capability' procedure. This involves assessing your ability to do your job considering your health. Long-term or frequent short-term sickness can be a fair reason for dismissal, but the employer must follow a fair process, including obtaining medical evidence, considering alternatives to dismissal, and holding meetings with you to discuss your health and any adjustments that might help.

• If your condition (like anxiety) qualifies as a disability under the Equality Act 2010, your employer has additional legal duties. This includes making reasonable adjustments to your role and not discriminating against you because of your disability. Dismissal in such circumstances needs to be handled very carefully to avoid claims of disability discrimination.

• The notice and arrangements for any meeting about your absence should be reasonable. It's good that your employer was flexible in rescheduling due to your illness. This flexibility is part of procedural fairness.

• Keep communicating with your employer, especially regarding your health condition and expected return to work. This helps in making informed decisions.

So, in answer to your question, while it is possible for an employer to dismiss an employee who is off sick, they must do so fairly and lawfully, considering all relevant factors, including the employee's length of service, the nature of their illness, the impact of their absence on the business, and any legal protections they may have.