Long-term sickness is one of the most difficult employment situations for both employees and employers. The legal process before dismissal is substantial — and shortcuts give you strong grounds for challenge.
The Fair Capability Process for Long-Term Sickness
| Stage | What should happen |
|---|---|
| Regular communication | Employer keeps in touch (without pressure) |
| Occupational health referral | Independent health assessment |
| Medical evidence review | Consider prognosis and likely return date |
| Explore reasonable adjustments | Phased return, modified duties, different role |
| Formal capability meeting | You can attend (or request phone/video); bring companion |
| Decision | Dismissal only if return is not foreseeable and alternatives exhausted |
| Right of appeal | Must be offered |
What Counts as a ‘Reasonable’ Wait?
Courts consider:
- The nature and prognosis of the illness
- The employee’s length of service
- The size and resources of the employer
- Whether the role can be covered (temporary worker, overtime)
- The prospect of return with adjustments
A large employer with easy cover who dismisses a long-serving employee after 4 months without an OH report is taking a significant legal risk.
Disability and Reasonable Adjustments
Before dismissal where disability is involved, the employer must consider:
- Phased return to work (e.g. starting 3 days/week)
- Modified duties (lighter tasks initially)
- Different role (even at reduced grade)
- Home working
- Specialist equipment or adaptations
Tribunals scrutinise what adjustments were considered and why they were rejected.
Your Rights at Dismissal
If you are eventually dismissed:
- Notice pay: at full contractual rate (not SSP rate)
- Holiday pay: accrued but untaken
- Statutory redundancy pay: does not apply (this is capability dismissal, not redundancy)
- Appeal: must be offered
Your Practical Options if Dismissed on Long-Term Sick Leave
If you are dismissed while off sick, act promptly:
- Request the reason in writing — your employer must give you a written reason for dismissal if you have 2+ years’ service (or request it)
- Appeal the dismissal — most contracts include an internal appeal process. Use it, even if unlikely to succeed — it exhausts internal remedies required before tribunal
- Contact ACAS — call 0300 123 1100 for advice, and start ACAS Early Conciliation before the 3-month clock expires
- Consider Equality Act 2010 — if your long-term condition is a disability (substantial, long-term impact on day-to-day activities), you may have a discrimination claim as well as unfair dismissal, which is uncapped compensation
- File at Employment Tribunal — within 3 months minus one day from the dismissal date (ACAS early conciliation pauses the clock)
Even if dismissed fairly on capability grounds, you are still entitled to statutory notice pay (or pay in lieu) and accrued holiday pay.