Example cases › Sickness & Absence
Sickness & AbsenceAnswered by Detailed Dan
Can I dismiss an employee on long-term sick leave?
A worked example case · Last reviewed 4 July 2026
The situation
An employee has been off for eight months with a back condition. Fit notes keep arriving monthly, there is no return date, SSP has been exhausted, and a small team is absorbing the workload. You need to know if — and how — this can ever end.
The answer Just Ask, HR gives
Detailed Dan — Structured and thorough — every step in order.
Yes — dismissal for long-term ill-health absence can be fair. It's a capability dismissal, and the law expects patience and process rather than an indefinite wait. Tribunals ask: did the employer act reasonably in treating the absence as sufficient reason, at the time they did? Here's what "reasonably" looks like:
- Up-to-date medical evidence is non-negotiable. Commission an occupational health report asking specific questions: prognosis, likely return timescale, what adjustments would enable a return, permanence. A tribunal will not accept "we assumed".
- Consult the employee throughout — regular, humane welfare meetings, not radio silence then a dismissal letter. Ask what they think would help. Their input shapes what's reasonable.
- Exhaust the alternatives first: phased return, lighter duties, different role, later start times, homeworking. If the condition amounts to a disability under the Equality Act 2010 — after eight months, quite possibly — these become legally required reasonable adjustments, and you'll also need to justify the dismissal as proportionate (discrimination arising from disability, s.15).
- Check for medical severance schemes — permanent health insurance or ill-health retirement under any pension scheme must be considered before dismissal; dismissing someone out of PHI cover is a classic (expensive) mistake.
- Only then: a formal capability meeting with the medical evidence shared in advance, right to be accompanied, genuine consideration of their representations, notice paid, and a right of appeal.
The question a tribunal ultimately weighs is whether a reasonable employer of your size could be expected to wait longer. A 200-person firm can cover an absence a 6-person firm cannot — your size is legitimately part of the equation. Document the operational impact as you go.
Key points
- Ill-health dismissal = capability dismissal — fair if evidence, consultation and alternatives are genuine
- Current OH evidence with specific questions is the foundation
- Equality Act likely applies — reasonable adjustments and s.15 justification needed
- Check PHI/ill-health retirement before any dismissal decision
- Employer size legitimately affects how long is "reasonable" to wait
Every situation is different — ask about yours
Just Ask, HR gives you a specific, UK-grounded answer in about 30 seconds — in the advice style you choose. Free to try.
Ask Just Ask, HR — free
Example scenario for illustration. These cases are realistic but fictional — no real employee
or employer is described. Guidance reflects UK employment law and ACAS practice as at the review date and is
general information, not legal advice; statutory rates and rules change, so check
gov.uk for current figures.
For a live dispute or tribunal matter, speak to a solicitor.
© Just Ask Apps Ltd · Privacy ·
Terms