By Charles Power

Generally, you cannot discipline or dismiss an employee for taking sick leave because they are exercising their lawful right to take paid sick leave.

However, there are some circumstances in which you can discipline and in some cases dismiss an employee for reasons associated with their taking of sick leave.

For example:

1. If an employee is frequently taking sick leave, you can indicate that you are concerned about the frequency of their paid sick leave absences and want to know whether there is anything you can do to help minimise them, e.g. stagger the employee’s working hours or provide longer breaks. In this respect, you can insist that the employee cooperate with your efforts to ensure that their work is not contributing to their illnesses by providing medical information. If they do not cooperate, you may discipline and ultimately dismiss them.
2. If you have real grounds for disputing that the employee is actually unfit for work, you can seek further information and ultimately discipline an employee who refuses to give such information or where the information provided shows that the employee did not have the right to take sick leave. In this case the reason for dismissal is the employee wrongfully claiming that they are unfit for work in order to secure paid leave. Given the seriousness of such an allegation, you need real evidence that the employee is not unit for work.
3. If the employee does not have the right to take the paid sick leave because he/she has not complied with notice or evidentiary requirements, you can warn the employee that future occasions of this conduct may lead to the absence being unpaid or even dismissal, given the adverse impact of the non-compliance on the business. You would need to be sure that you give the employee a chance to explain why he or she did not meet the requirements and that you give due consideration to their response. If the conduct continues, and the employee is again unable to give satisfactory explanations for the non-compliance, you can dismiss on grounds of unauthorised absence from work and failing to meet requirements for taking sick leave without a proper excuse.
4. If an employee has exhausted his/her paid sick leave entitlement and has taken more than 3 months’ sick leave in the last 12 months, then you can dismiss the employee because they have exhausted their sick leave entitlement.

But you must ensure you proceed with caution! If you dismiss for any of the above reasons, you could still face a number of potential claims, including general protections claims, unfair dismissal claims and unlawful discrimination claims.

Therefore, you need to consider the following points carefully before making the decision to dismiss an employee for any of the above reasons.

• General protections claim. You will need to be able to prove that the circumstance motivating the decision to discipline or dismiss was only for the above reasons and not because of the fact that the employee is exercising a lawful right to take paid sick leave. Obviously this will be easier if you have escalated the issue of non-compliance through counselling and warnings before proceeding to dismiss.
• Unfair dismissal claim. Dismissal for the above reasons might be unfair depending on the excuses given by the employee for non-compliance, the impact of non-compliance on the business, and the employee’s length of service, age, employment history and prospects of finding new employment. You need to consider all of these points before making your decision.
• Unlawful discrimination claim. An unlawful discrimination claim might arise if it was reasonable to grant an employee a period of sick leave because medical evidence suggested that it would enable an employee to resume full work capacity. This is unlikely to be the case in single day absences.