Being off sick is not misconduct. You have not broken a rule, and you have not chosen to be unwell. But the law does allow an employer to dismiss an employee whose health stops them doing the job — as long as the reason is genuine and the process is fair. That is a high bar, and most sickness dismissals that reach a tribunal fail on the process rather than the reason. This guide explains what your employer must do before dismissing you for sickness absence, what protection you have if your condition is a disability, and how to push back when the process goes wrong.
Contents
- Can you be dismissed for being off sick?
- Capability: the legal basis for a sickness dismissal
- Long-term sickness and short, repeated absence
- What a fair process looks like
- Medical evidence and occupational health
- Disability: the extra layer of protection
- Sick pay while the process runs
- Absence triggers, warnings and PIPs
- When a sickness dismissal is unfair
- What to do if you are facing a capability process
- FAQs
- How the National Employees Union can help
Can you be dismissed for being off sick?
Yes, in principle. Section 98 of the Employment Rights Act 1996 sets out five potentially fair reasons for dismissal, and one of them is capability — which includes capability assessed by reference to health. An employer who can no longer rely on you to attend work may, eventually, end your employment.
But “in principle” is doing a lot of work in that sentence. The reason alone never makes a dismissal fair. Under section 98(4) the tribunal asks whether the employer acted reasonably in treating that reason as sufficient, judged against the size and resources of the business. That test is where most sickness dismissals are won and lost.
Capability: the legal basis for a sickness dismissal
A capability dismissal for ill health is not a punishment. Your employer is not saying you did something wrong. They are saying the employment relationship has become unworkable because you cannot do the job you were engaged to do, now or within a reasonable timescale.
Tribunals expect an employer to answer three questions before reaching that point. Can they establish, on medical evidence, the true position on your health and your likely date of return? Have they consulted you and taken your views on board? Have they considered whether anything short of dismissal would allow you to stay?
If any of those three answers is no, the dismissal is procedurally unfair even if the underlying picture was bleak. That is why the paperwork trail matters more than the diagnosis.
Long-term sickness and short, repeated absence
The law treats two very different situations under the same capability heading, and the fair process differs for each.
| Long-term sickness absence | Short-term intermittent absence | |
|---|---|---|
| Typical pattern | One continuous absence of weeks or months | Repeated short spells, often unrelated |
| Key question | When, if ever, can you return? | Is your attendance level sustainable for the business? |
| Evidence needed | Up-to-date medical prognosis | Accurate absence records and return-to-work notes |
| Process route | Consultation meetings and welfare reviews | Attendance triggers, warnings, review periods |
| Reasonable step | Adjusted duties, phased return, redeployment | Adjusted triggers, support, cause investigation |
With long-term absence, your employer must wait a reasonable time before acting. There is no fixed number of weeks. Relevant factors include the size of the employer, the cost of cover, how critical your role is, how long you have served, and whether a return is realistically in sight.
With short-term intermittent absence, the employer is entitled to look at the overall attendance record. Even then, they must review the reasons behind each spell, warn you clearly that your job is at risk, and give you a fair period to improve before dismissing.
What a fair process looks like
A fair sickness capability process is a sequence, not an event. Skipping a step is the most common employer error.
Contact and welfare meetings
Your employer should stay in touch during your absence, at a frequency that is supportive rather than intrusive. Welfare meetings can be held at home, by phone, or at a neutral venue if attending work is difficult.
A formal capability meeting
Before any decision, your employer must hold a meeting where the concern is put to you in writing beforehand, with the medical evidence they intend to rely on. You must know that dismissal is a possible outcome. If you do not know your job is at risk, the meeting is not a fair one.
Your right to be accompanied
The statutory right to be accompanied at work meetings applies to disciplinary and grievance hearings. Many employers extend it to capability and attendance hearings, and most policies say so. Ask for a union representative or colleague as a matter of course — the disciplinary and grievance guide explains how the right works in practice.
A decision in writing, and an appeal
The outcome must be given to you in writing with reasons, along with a right of appeal to someone not involved in the original decision. A refusal to allow an appeal is, on its own, a strong indicator of an unfair dismissal.
Medical evidence and occupational health
Your employer cannot rely on guesswork about your health. They are expected to seek proper medical evidence, usually through an occupational health referral or a report from your GP or specialist.
Under the Access to Medical Reports Act 1988, where your employer asks your own doctor for a report, you have the right to be told, to see the report before it is sent, and to ask for corrections or to withhold consent. Occupational health referrals work differently, but you can still ask to see the report and comment on factual errors.
A report that says a return is likely within a defined period makes dismissal hard to justify. A report that gives no prognosis at all is not a licence to dismiss either — the employer should go back for more detail. Where your employer ignores the medical advice they paid for, that inconsistency is worth putting in writing.
Disability: the extra layer of protection
If your condition amounts to a disability under section 6 of the Equality Act 2010 — a physical or mental impairment with a substantial and long-term adverse effect on your day-to-day activities — you gain two further protections.
The duty to make reasonable adjustments
Your employer must take reasonable steps to remove the disadvantage you face. In an absence case that often means adjusting the absence triggers so disability-related absence is discounted, allowing a phased return, changing duties or hours, providing equipment, or offering redeployment into a suitable role.
Discrimination arising from disability
Under section 15, dismissing you because of something arising from your disability — your absence record — is unlawful unless the employer can show it was a proportionate means of achieving a legitimate aim. An employer who has not tried the obvious adjustments will struggle to show proportionality.
Disability discrimination claims have no qualifying period of service. If your condition is or may be a disability, say so early and in writing, and ask what adjustments will be considered.
Sick pay while the process runs
Money pressure often pushes people back to work too soon, so it is worth knowing where you stand. Since 6 April 2026 statutory sick pay is payable from the first full day of sickness absence, the three waiting days having been removed by the Employment Rights Act 2025. The lower earnings limit has gone too, so there is no minimum earnings threshold.
The rate is the lower of £123.25 a week or 80% of your normal weekly earnings, payable for up to 28 weeks. Your contract may provide company sick pay on top; check your handbook. Our guide to statutory sick pay in the UK sets out eligibility, fit notes and what to do if payment is refused.
Running out of sick pay does not, by itself, entitle your employer to dismiss you. The exhaustion of sick pay is a fact the employer may take into account, not a deadline in law.
Absence triggers, warnings and PIPs
Most employers run an attendance policy with trigger points — a number of absence episodes or days in a rolling period that prompts a formal review. Triggers are a management tool, not a legal rule. They must be applied consistently and adjusted where disability is in play.
Where the concern is partly about your output rather than your attendance, your employer may put you on a performance plan instead. Our guide to your rights on a performance improvement plan explains what a fair plan looks like, and why targets set while you are unwell are rarely reasonable.
If you think the absence process is being used against you unfairly, raise a grievance in writing. The grievance letter template gives you a structure: the facts, the policy, the impact, the outcome you want. A grievance raised early creates the paper trail you may need later.
When a sickness dismissal is unfair
A dismissal for sickness absence is likely to be unfair where your employer did not obtain or properly consider medical evidence, did not consult you before deciding, gave no warning that your job was at risk, ignored recommended reasonable adjustments, failed to consider redeployment, applied absence triggers rigidly to disability-related absence, or dismissed you while a return date was in sight.
It is also automatically unfair to dismiss you for asserting a statutory right, such as your right to sick pay, and no qualifying service is needed for that. Our guide to unfair dismissal in the UK covers the categories in full.
For ordinary unfair dismissal you currently need two years’ continuous service. From 1 January 2027 that qualifying period drops to six months, under section 25 of the Employment Rights Act 2025, and it applies where the effective date of termination falls on or after that date. The cap on the compensatory award is removed on the same date; until then it is the lower of £123,543 or 52 weeks’ gross pay.
The time limit does not move. You have three months minus one day from the effective date of termination to start ACAS Early Conciliation.
What to do if you are facing a capability process
Keep your employer informed and send fit notes on time. Silence is the one thing that genuinely damages your position.
Put everything in writing. Confirm meetings by email, correct inaccurate absence records immediately, and name your condition and any adjustments you need. Ask for a copy of the attendance policy and for the medical evidence being relied on.
Then get representation before the formal meeting, not after the outcome letter. Advice at the consultation stage changes decisions; advice after dismissal only challenges them.
FAQs
How long can you be off sick before you are dismissed?
There is no fixed period in law. Employers must wait a reasonable time, judged on the medical prognosis, the size and resources of the business, the importance of your role and the cost of covering it. Exhausting your sick pay or reaching a policy trigger does not automatically make dismissal fair.
Can you be sacked while signed off sick?
Yes, an employer can dismiss you while you are signed off, and a fit note does not prevent dismissal. But they must still follow a fair capability process, take medical evidence and consult you first. Dismissing you without a meeting because you are absent is very likely to be unfair.
Can I be dismissed for sickness absence caused by a disability?
Only if your employer can justify it. They must first make reasonable adjustments under the Equality Act 2010, including discounting disability-related absence from triggers where reasonable. Dismissal without those steps risks both unfair dismissal and discrimination arising from disability.
Does my employer have to offer me another job?
There is no absolute duty, but a reasonable employer will consider redeployment before dismissing, especially where a suitable vacancy exists. If you are disabled, offering a suitable alternative role can itself be a reasonable adjustment. Ask in writing what vacancies have been considered.
Can I be dismissed for stress or a mental health condition?
The same capability rules apply, and mental health conditions frequently meet the Equality Act definition of disability. Your employer should seek occupational health advice, look at workload, management and adjustments, and address any workplace cause of the stress. Dismissing without investigating the cause is a common ground of challenge.
Do I get notice pay if I am dismissed while off sick?
Yes. A capability dismissal is not gross misconduct, so you are entitled to your contractual or statutory notice, or pay in lieu of it. You should also receive any accrued untaken holiday, which continues to build up while you are off sick.
How the National Employees Union can help
A sickness capability process is exhausting at exactly the moment you have least energy for it. You should not have to run it alone.
National Employees Union members get a review of the absence process against the law and your employer’s own policy, a legally trained representative at capability and appeal meetings, help getting reasonable adjustments agreed in writing, support challenging inaccurate absence records or medical reports, and advice on unfair dismissal and discrimination claims where dismissal has already happened.
Time limits are short and they start on the day your employment ends. Get in touch as soon as a formal meeting is set.
Join the National Employees Union today
Membership from £15/month.
Written by the National Employees Union team. We represent employees in sickness absence and capability processes across the UK. This guide is reviewed regularly and was last updated in August 2026. For advice on your specific situation, contact us.
