I have been off sick for 6 months. Can I be sacked?

I have been off sick for 6 months. Can I be sacked?

If you’ve been off sick for 6 months or more, all you probably want to do is to get well. You don’t need the additional worry of being sacked.

This article looks at the legal position.

Can you lose your job while on sick leave?

Yes, you can. Your employment can end if:

• You choose to resign while you’re off sick
• Your employer chooses to dismiss you (sack you / fire you) because they think you’re no longer capable of doing your job due to your illness
• Your job role gets made redundant while you’re off sick

Getting paid while on sick leave

Depending on your situation and level of earnings, you might be able to get Statutory Sick Pay (SSP) while you’re off work on sick leave.

Note that you can’t get SSP for the first three days you’re off sick, but after that you can get £116.75 a week for up to 28 weeks.

You usually get SSP if you:

• Work for an employer
• Are sick for four full days or more in a row, including your non-working days
• Earn at least £123 a week on average, before tax

To get SSP, you’ll need to follow your employer’s rules – for details, check your employment contract or staff handbook. They will usually tell you how to report your sickness absence, how often, and what medical evidence you need to provide (if any), and when.

You can’t get SSP if you:

• Are self-employed
• Have already received SSP for 28 weeks ending within the last 8 weeks
• Were paid Employment and Support Allowance (ESA) in the last 12 weeks
• Are in the armed forces
• Are in legal custody, detained either by the police or in prison
• Have an agricultural workers’ contract from before 1 October 2013

As well as SSP, your employer might also pay you their own sick pay. This is usually called ‘contractual sick pay’ (CSP). CSP can’t be less than £116.75 a week and can start from the first day you’re off sick.

The amount of CSP you get and how long you get it for will depend on what it says in your contract, staff handbook or company intranet. To find out more, ask your employer.

Resigning while on sick leave

If you want to leave your job, you’ll have to resign – that’s the technical term for ending your employment contract. (It’s also known as ‘quitting’ and ‘handing in your notice’.)

You’ll need to check your employment contract or staff handbook to find out the minimum period of notice you have to give.

When your resignation is accepted, you’ll get a final payment which might vary from your usual weekly or monthly pay, depending on:

• If you’re not working during your notice period because you’re off sick
• If you leave part-way through a weekly or monthly pay period
• The amount of holiday you’ve taken during this holiday year
• Whether any money has to be deducted for training courses

Obviously, once you leave work, you won’t be earning any money. So you have to be careful to ensure you can afford to cover your usual living expenses.

If you don’t have another job to go to (or you’re still not well enough to work), resigning could affect your entitlement to benefits or other financial support.

If you’re intending to resign due to ill health, it’s wise to take advice first to ensure you’re in the best possible financial position. Give us a call and we’ll advise.

Being dismissed while on sick leave

If you’ve been calling in sick to take time off work but you’re not genuinely ill, your employer has the right to dismiss you.

If your employer thinks you’re no longer capable of doing the job due to your illness, they can dismiss you while you’re on sick leave – but this might count as unfair dismissal, especially if they didn’t follow a fair process when they dismissed you.

If it’s happened to you, get in touch, as we may be able to help you get your job back, or negotiate a payment for you in compensation for losing your job.

What your employer should really do is look at ways to support you in returning to work. For example, they could change the nature of your role, or offer you a phased return to work, or provide you with training or coaching. In return, you should cooperate as much as possible.

Being dismissed when you’re disabled

If you’re disabled, your employer must liaise with you to make reasonable adjustments for you. They can dismiss you if:

• You can’t do the job after everything has been tried to remove all barriers, including all possible support and reasonable adjustments
• There are no other suitable roles the employer can offer you as a reasonable adjustment
• There is no other way the work can be done, for example, distributing the work differently within your team
• You no longer meets the health requirements for the role, because of the progressive nature of your disability
• You’ve reached the agreed maximum number of absences, including any adjustments for disability-related absences
• Medical evidence shows you are not likely to return to work within a reasonable timescale, and you agree with this
• Your absence is having a significant impact on the organisation
• Your employer cannot reasonably continue to support such a high rate of absence
• The decision to dismiss you is reasonable, when all the circumstances have been considered

They must not dismiss you, discipline you or make your role redundant, just because you’re disabled, and they must not force you to retire or resign because of your disability.

If that happens, you might have a claim for disability discrimination under the Equality Act 2010. Again, you can talk to us. We’re employment lawyers who act for employees who’ve been mistreated at work in England, Wales, Scotland and Northern Ireland. We never act for employers.

Being made redundant when you’re off sick

If your job role is likely to be made redundant while you’re off sick, your employer should keep you up to date during the redundancy process, just as much as if you were in the workplace.

If you miss something important, especially if your sick leave is related to pregnancy or a disability, it could count as discrimination and you might be able to make a claim against your employer. If this happens to you, let us know and we’ll advise.

What this means to you: Off sick for 6 months. Can I be sacked?

We act for employees in dispute with their employers.

If you’re facing dismissal due to long-term sick leave, or have recently lost your job, let us know. You may be able to claim for unfair dismissal and/or discrimination, win back your job, or be paid compensation.

Related reading: Off sick for 6 months. Can I be sacked?

For more on this subject, please read our related article:

How long can you be on sick leave before dismissal?

This includes the fair process your employer should follow if they dismiss you while you’re off sick. It also describes what you should do.

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