UPDATE: Employees no longer need to pay a fee to raise an employment tribunal claim, following a ruling by the Supreme Court in July 2017. The court said that the fees were not lawful and any individual who paid the fee between July 2013 and July 2017 is able to reclaim it.
It's bad enough being too sick to work, but fears about losing your job can only add to the stress. So what are your rights with ill health dismissal and is there any thing you can do to make sure your employer doesn't kick you out of the door before you are ready?
There are six grounds under which employers are legally able to sack employees, and the most significant from an ill health dismissal point of view is capability. If you are too unwell or physically unable to perform your job, your employer has the right to dismiss you, perhaps forcing you into early retirement through ill health.
Christopher Smith, a partner at Quality Solicitors Wilson Browne, says: "Your employer is paying money for a job that is not being done. You can be fairly dismissed for ill health."
However, there are strict procedures that your employer needs to follow before dismissing you on grounds of ill health. As Smith explains, if it doesn't follow the correct procedures it could leave itself open to a claim of unfair dismissal or discrimination. "Employers really need to substantiate their claim and without good evidence they leave themselves vulnerable."
Throughout your absence, your employer will have been requesting 'fit notes' from your doctor. These are used to authorise your sickness absence after seven consecutive days off work. Unlike 'sick notes' that preceded them, fit notes are geared towards helping you return to work and give your GP the option to provide some suggestions as to how your employer can support your return to work. Once you have been off sick for four weeks or more, you are considered long-term sick.
Before dismissing you an employer must look at different ways to make it easier for you to return to work, which might involve shorter hours or different duties. It must also discuss your health with you asking when or if it is likely to improve.
As part of this, your employer will want you to be medically assessed to confirm what the problem is and when or if you will be ready to return to work. This might be with your own GP, a doctor appointed by your employer or an occupational health specialist.
Depending on your contract, you might find that attending such assessments is a condition of your employment, but even if it is not, experts agree it is important to co-operate in the process. If you don't, says Rebecca Lynch, a partner in the employment law department at Gordon Dadds, "you are forcing your employer into making a decision without any medical insight".
And however pressured or vulnerable you might feel about the steps your employer is taking, Lynch says it's a great opportunity to take ownership of the process and ensure your voice is being heard. This can be particularly important if you are seeing an occupational health specialist who may not be medically trained.
"Take any supporting evidence with you and get them to speak to your GP if you don't think they understand your problems," she says. "Occupational health may be very sympathetic but remember they are being paid by your employer."
Anne Pritam, a partner in the employment team at law firm Stephenson Harwood, agrees. "Make sure your own physicians feed into the process. Don't stand back and let it happen to you. This is a very difficult and risky process for them. In practice this is a subjective decision for them and leaves them exposed."
How long can I be off sick?
Unfortunately for employees there are no rules that stipulate when employers can initiate the process of ill health dismissal. "There is no particular timescale, it depends very much on your role and the inconvenience to your employer," says Smith. "Typically the higher up the pay grade you are, the longer you can take off sick. The higher up you are, the harder you are to replace."
The size of the organisation you work for can also be important - larger companies for example will have more resources and find it easier to cover your job in your absence. "For smaller businesses it can be a lot more difficult, they have to find new staff and train them up," he adds.
Nonetheless, employers do need to be mindful that in dismissing you for ill health they are not discriminating against you under the terms of the Equality Act. "They can't discriminate against disability. They need to consider whether they have made reasonable adjustments or done anything that will have a greater impact on a disabled person," says Smith.
Lynch adds: "If you had accrued unfair dismissal rights, dismissal for ill health would be seen as aggressive within a year."
Ill health dismissal compensation
However, should you feel that you are ready to go, you may be able to negotiate some form of ill health dismissal compensation via a severance package or settlement agreement with your employer. This can provide you with a financial cushion until you are well again or can find alternative employment. Lynch says: "In doing this you sign an agreement to waive the right to any further claims against your employer in return for the money."
Your employer might be more open to this than you expect. Not only does it remove the risk of a tribunal but it saves them going through the lengthy and difficult process of terminating your contract.
Should you wish to challenge the decision it would need to be on the grounds of unfair dismissal (so long as you have been employed for two years, or one year if you were employed before 6th April 2012) or, if you are legally disabled you might be able to make a claim of discrimination under the Equality Act. Here you would need to prove that your employer did not make reasonable adjustments to enable you to return to work.
Unfortunately taking your employer to a tribunal isn't cheap. A claim for unfair dismissal carries a £250 issue fee and a whopping £950 hearing fee. Although these charges do need to be paid by the employee, Pritam says you might find that some lawyers will pay the fees upfront, or they might be paid by any legal cover you have as part of your home insurance. Alternatively if your income does not meet certain thresholds they may be waived.
But if you think you have a case don't let these charges put you off. Get some legal advice to see if you have a case. "If you think something about the process hasn't been right speak to a lawyer," advises Pritam. "A lot of lawyers will happily give you 15 or 20 minutes of their time for free on the phone."
For more help and confidential advice call the Acas (Advisory, Concilliation and Arbitration Service) helpline, which can help you with any employment dispute on 0300 123 1100.
Thank you for updating us on what has happened since the piece was written.
We have now added an update at the top of the article.