David Royden is a Partner with Laytons Solicitors and Head of Employment Law, Manchester, UK

Laytons Solicitors is a national law practice specialising in all aspects of Company and Commercial Law

Laytons Solicitors, 22 St John Street, Manchester M3 4EB.
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Offices at London, Manchester and Guildford, UK




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Where an employee’s level of sickness absence may eventually require the employer to consider the possibility of dismissal, if that dismissal is to be judged as fair the employer must be able to show that:

  • the employer was adequately informed about the employee's illness; and
  • the decision to dismiss the employee was reasonable in light of that information.

Consultation and Discussion - With the Employee

Consultation and discussion should first be undertaken directly with the employee. The employer should seek to find out from the employee the true nature of the illness(es). Such consultation should not at this stage be deemed or referred to as a disciplinary procedure or a “warning” about the employee’s levels of absence. Such phrases are linked to misconduct, and are not appropriate where it is actually an employee’s capability to carry out his or her job due to ill health absence, which is actually in issue. The emphasis at this stage must be, at least ostensibly, on “sympathy, understanding and compassion”.

There is no set procedure for such consultation, the emphasis being on the employer taking such steps as are necessary according to the individual circumstances of the case to gather information upon the true medical position. Full records of the absenteeism should be kept and these should be drawn to the employee's attention.

Consultation and Discussion - After Medical Advice

Following on from consultation with the employee the employer should consult a doctor about the nature of the employee's illness. This may be with the employee’s own doctor and/or with an independent doctor appointed by the employer. The employee's consent to such an examination will be required and the employer cannot insist on the examination. However, if the employee refuses to agree to a request to be medically examined the employer will have to act on the basis of the facts which are available. In such cases an Employment Tribunal would take account of the refusal and the dismissal may be fair even if, had medical opinion been available, it would have been unfair.

The employer has a duty to consider what reasonable measures may be introduced to alleviate such working conditions which may be contributing to or exacerbating the illness (e.g. stress). Such considerations should include the possibility of offering the employee alternative employment should such a position be available. If there is no underlying illness and no real problem with work, and the absenteeism is at a level to justify it, a warning must inevitably be considered as the next step.


Once information on the medical condition has been gathered by consultation with the employee and a doctor it may become necessary for the employer to consider dismissal if the employee's attendance record has failed to improve. The factors to be weighed up on considering whether such a dismissal is fair or reasonable will include:

  • the duration of the illness (whether temporary or permanent)
  • the likelihood of recurrence on a regular basis (the disruptive effect)
  • the length of the various absences and the space of good health between them
  • the employer’s need for the work done (finding replacements)
  • the length of the employee's employment (including any previous good record)
  • the impact of the absences on others who work with the employee (overtime)
  • the extent to which the difficulty of the situation and the position of the employer has been made clear so that the employee realises that the point of no return is approaching


Consideration of the factors (and the gathering of evidence in respect of the same) referred to above should start from the outset and full records should be kept. Clearly, of fundamental importance are the terms of the employee's contract which may provide for termination after certain levels of absenteeism. Also details of the number of days taken off through illness and their regularity should have been made clear to the employee.

The Disability Discrimination Act 1995

When carrying out the above procedure in cases of sickness absence an employer should consider whether the illness constitutes a disability within the meaning of the Disability Discrimination Act 1995. This Act has implemented significant new rights for disabled people to prevent discrimination. See separate section on Discrimination.

Discrimination occurs when a disabled person is treated less favourably than other people for a reason related to his or her disability, and this treatment cannot be justified. Discrimination also occurs if an employer fails to make reasonable adjustments to ensure that employment arrangements or premises do not put a disabled person at a disadvantage in comparison to a non-disabled person and the failure cannot be justified.

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