If you’re currently signed off work due to illness, its natural to ask yourself if you can you be dismissed while off sick. In this article we explain your rights when off sick in the UK, including protections for stress-related absences, the risk of unfair dismissal, and what to do if you feel under pressure to return to work. When you are facing issues at work, it is important to decide what your ideal outcome is. It often helps to start by thinking about whether you want to return to work or leave. However, even if you want to leave, it is rarely a good idea to resign. Instead, we recommend you Stay Employed, Take Advice and Act Quickly.
Can Your Employer Sack You While You’re Off Sick?
Yes, but there are ways to protect your position. If you have been employed for at least 2-years, then if your employer dismisses you without a “fair” reason, or if they fail to follow a fair process, then you can claim unfair dismissal.
Being off sick does not make you immune to dismissal, but it does mean your employer needs to be careful, if you have at least 2-years service.
Acceptable reasons for dismissal while off sick could include:
- Capability: if you’re no longer able to perform your role due to ill health.
- Conduct: if misconduct occurred before or during the sick leave period.
- Redundancy: if there is a genuine business need and proper consultation takes place.
If you are on long term sick leave and your employer is considering dismissal on grounds of capability, to establish a fair process, an employer must show that it:
- Consulted with you before making a decision.
- Conducted a thorough medical investigation.
- Explored other options.
Failing to do these things could lead to a claim for unfair dismissal.
Do You Need 2 Years’ Service to Claim Unfair Dismissal?
Yes, you must have at least 2 years of continuous service with your employer to bring a claim for unfair dismissal. There are claims that do not require 2-years continuous service, we cover that in more detail in our article titled, unfair dismissal under than 2 years.
A key consideration is whether you are off sick because of a disability. This can change the legal landscape, even if you have less than 2-years continuous service.
Some other important exceptions to the 2-years continuous service rule are:
- If the dismissal is linked to a protected characteristic (e.g. disability discrimination related to mental health).
- If you are dismissed for making a protected disclosure (whistleblowing).
- If you are dismissed for making a protected act (victimisation), such as complaining about discrimination.
- If the dismissal relates to exercising a statutory right (such as taking sick leave or requesting flexible working).
- If it arises from an automatically unfair reason, such as pregnancy, trade union activity, or asserting health and safety rights.
So even if you don’t have 2 years’ service, you may still have a claim, especially if your absence relates to a health condition that could amount to a disability under the Equality Act 2010.
Off Sick with Stress or Mental Health — Are You Protected?
If you’re off sick with stress, anxiety, depression, or a related mental health issue, you may be protected under the Equality Act 2010, particularly if your condition has a substantial and long-term impact on your ability to carry out normal daily activities, because you may be able to argue that it is a disability.
This means your employer has a legal duty to:
- Avoid discrimination.
- Consider reasonable adjustments, such as phased returns, flexible working, or changing your duties.
- Handle your situation without placing you at a disadvantage due to things that arise from your disability (such as absence).
Dismissing someone with a mental health condition without proper steps may amount to disability discrimination.
Can You Be Made Redundant While Off Sick?
Yes, but being off sick shouldn’t be the reason you’re selected for redundancy. Employers often offer “redundancy” to soften the blow, but this is still a dismissal, and the process may be a sham if your role is not actually redundant (like unfair dismissal, you must have at least 2-years service to be eligible for redundancy).
Redundancy must be:
- Genuine (i.e. your role is no longer needed)
- Fairly selected (e.g. using objective criteria)
- Properly consulted (you must be involved in the process)
If you believe your sickness absence influenced the decision to make you redundant, you may have a claim for unfair dismissal or discrimination.
Can You Resign If You’re Treated Unfairly While Off Sick?
If you feel that your employer has:
- Treated you badly during sick leave
- Ignored medical advice or your fit notes
- Failed to support your mental health
- Pressured you unfairly to return
Then you might be entitled to claim constructive dismissal (this type of claim also requires you to have at least 2-years continuous service).
However, before resigning, always get legal advice. Leaving your job without a clear legal strategy can impact your rights and potential compensation. We said this above, but it is worth repeating, if you are thinking about resigning, please Stay Employed, Take Advice and Act Quickly.
Resigning often weakens your position and you may have forfeited the opportunity to negotiate an exit, where you could have left with Tax Free Compensation, A Reference and Your Reputation Intact.
What to Do If You’re Worried About Being Dismissed While Off Sick
If you’re concerned about your job while signed off:
- Keep a written record of all communications with your employer.
- Save copies of fit notes and medical reports.
- Stay Employed, Take Advice and Act Quickly.
How We Can Help
At Toner Legal, we often help clients that come to us asking, can you be dismissed while off sick?
We advise employees across the UK on sickness absence, stress at work, and unfair dismissal. Whether you’re feeling pressured to return too early, concerned about being let go, or simply unsure where you stand we’re here to help.
We offer expert legal advice on:
- Sickness-related dismissal and discrimination.
- Settlement agreements.
- Constructive dismissal claims.
- Reasonable adjustments and mental health at work.
- Negotiating exits.
Contact us today if you’re off sick and worried about dismissal, we’ll help you understand your rights and protect your position.
Frequently Asked Questions
Can I be sacked while off sick with stress?
Yes, you can be dismissed while off sick, but the legal protection you have depends on your length of service and the reason for your absence.
- If you have at least 2 years’ service, your employer must show a fair reason (such as capability) and follow a fair process. If they fail to do so, you may have a claim for unfair dismissal.
- If you have less than 2 years’ service, you can’t claim unfair dismissal, but you may still be protected if your absence is linked to a disability, or if the dismissal relates to discrimination, whistleblowing, or another automatically unfair reason.
Do I need 2 years of service to claim unfair dismissal?
Yes, in most cases you need at least 2 years of continuous service to claim ordinary unfair dismissal. However, this requirement doesn’t apply if the dismissal involves:
- Discrimination (e.g. related to disability, sex, race, etc.)
- Whistleblowing
- Pregnancy or maternity leave
- Health and safety concerns
- Other automatically unfair reasons
Can I be made redundant while off sick?
Yes, but the redundancy must be genuine, and your sickness absence should not be a factor in your selection. Employers must follow a fair process and consult with you. If the process feels rushed, unfair, or targeted, you may have a claim for unfair dismissal or discrimination.
What if my employer is pressuring me to come back to work before I’m ready?
This can be unlawful, particularly if your condition qualifies as a disability under the Equality Act 2010. Your employer should follow medical advice and consider reasonable adjustments. Keep written records, consult your GP, and seek legal advice. If your employer is handling your absence badly, and you have at least 2-years service, then this may amount to constructive unfair dismissal.
Is it a good idea to resign while off sick?
Very rarely. Resigning can make it harder to negotiate an exit or pursue a legal claim. We advise: Stay Employed, Take Advice, and Act Quickly. You may have more options than you think, including the possibility of negotiating a settlement.
Can I get a settlement agreement if I’m off sick?
Yes. Many employees who are off sick, especially with stress or mental health conditions, choose to exit by agreement. A settlement agreement can include a tax-free payment, a reference, and terms that protect your future. We can negotiate this on your behalf. It is important to know how to negotiate a settlement agreement.