Summary
- There is no legal definition of “too many sick days” in England and Wales; it is for the employer to determine, though any action taken must be fair, reasonable, and free from unlawful discrimination.
- Before dismissing an employee for excessive sick leave, employers must consider whether the employee has a disability, whether reasonable adjustments can be made, and whether sufficient time has been given for recovery.
- A fair dismissal process requires obtaining medical evidence, holding formal meetings, providing written notice, and following the ACAS Guide to Discipline and Grievance to reduce the risk of an unfair dismissal claim.
- This article is a plain-English guide to managing and dismissing employees for excessive sick leave, aimed at employers operating in England and Wales, produced by LegalVision, a commercial law firm.
- LegalVision specialises in advising clients on employment law and workplace procedures.
Tips for Businesses
Introduce a clear sickness absence policy if you do not already have one. Keep detailed records of all absences and hold return-to-work meetings consistently. Before considering dismissal, obtain occupational health advice and document every step taken, as this evidence will be critical if a claim is brought against you.
Excessive sick leave can place real strain on your business, disrupting workflows and increasing pressure on other staff. As an employer, you have the right to address this, and in some cases, to dismiss an employee who is unable to fulfil their role due to ongoing absence. However, how you handle the process matters greatly, as dismissals must be fair and free from unlawful discrimination. This article will explain what a court may consider being too many sick days and what you might want to consider before taking action. It also explains how to dismiss an employee due to taking too many days off sick.
What is Too Many Sick Days?
When an employee takes too many days of sick leave, it is officially known as ‘taking excessive sick leave’. In fact, it is entirely up to you to decide what too many days of sick leave is. There is no legal definition for this. However, you should record the dates and reasons for your employee’s absence. This way, you have a record to base any action.
This factsheet outlines key developments in 2025 affecting workforce management. In particular, the proposed Employment Rights Bill (2024) will drive significant changes, anticipated to start late 2025.
Initial Considerations
If your employee is taking too many days sick leave, before you take any drastic action, you should consider:
- whether you can support your employees better in their job, including whether you can change their role; and
- if you have given them enough time to get better.
Furthermore, you must consider whether your employee has a disability. Long term illness can be considered a disability. Where you have an employee with a disability, you must support them with that disability in the workplace. Importantly, if you dismiss an employee due to their disability, you could be unlawfully discriminating against them.
In addition to this, you should consider what your company policy on absences states. For example, examine what reasons are acceptable and the rules on pay for these.
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Dismissing an Employee Due to Sickness
You can dismiss your employee if they have taken too many days as sick leave and, as a result, they are incapable of doing their job. However, you must ensure that you follow your procedure and do not discriminate in any way, including discriminating against someone with a disability.
You must carefully consider whether dismissal is appropriate before dismissing an employee due to too many days off sick. Where an employee has been working for you for more than 23 months, and three weeks, they could claim unfair dismissal. You should follow the ACAS Guide to Discipline and Grievance.
Before dismissing an employee, you must be able to prove that you acted reasonably. Below are some actions you may wish to take to help you prove this before deciding to dismiss your employee due to too many days off work sick.
1. Is Your Employee Medically Fit to Work?
If you are considering dismissal, you should ensure that you are fully aware of your employees’ medical position, involving using your own medical experts to make assessments. Often an employment contract will include a clause on this.
You may also require the employee to have an examination by an occupational health professional, which would guide you on any reasonable adjustments you could make to help the employee at work. In doing so, you can prove that you have taken steps to attempt to accommodate the employee in the event that the issue persists and you proceed with dismissing them.
2. Provide Written Notice of Dismissal
If your employee is taking a period of sickness absence, each time they return to work, it is advisable that you have a return to a work meeting. This shows your employee that you are aware of their sick leave and allows you to specify what you expect of them. The latter should be followed up in writing.
However, where you have followed a fair procedure, investigated the employee’s medical fitness, and considered any reasonable adjustments, you can provide your employees with written notice of dismissal and a date for a meeting regarding this.
3. Hold a Meeting
A meeting should be held to allow you and your employee to discuss the issues and see if anything can be done to help the employee regarding their days off sick. It is the employee’s right to have a trade union representative or colleague accompany them to this meeting.
At the meeting, you must demonstrate that it is unreasonable on the resources of your business to continue to hold the employee’s position open any longer and that where any disability is involved, you have made reasonable accommodations for this.
4. Written Notice of Final Decision
You should send your employee a written notice of dismissal stating your reason and the date it will take effect. You should also explain that your employee has a right to appeal your decision should they wish.
Key Takeaways
Employees taking too many days off work sick can be problematic for your business, and you should not ignore it. Whilst usually it will be genuine, and you can make adjustments to help your employee, there are times when it is not. Whilst you can dismiss an employee for taking too many days off sick on the basis that it has made them incapable of carrying out their job, there are procedures you must follow to show that you have been reasonable and fair in doing so.
If you need help with understanding what to do if your employee is taking too many sick days in England and Wales, LegalVision provides ongoing legal support for businesses through our fixed-fee legal membership. Our experienced employment lawyers help businesses manage contracts, employment law, disputes, intellectual property, and more, with unlimited access to specialist lawyers for a fixed monthly fee. To learn more about LegalVision’s legal membership, call 0808 196 8584 or visit our membership page.
Frequently Asked Questions
There is no legal guideline on how many days taken off sick are considered too many days. It is instead up to you as the employer to decide.
You can dismiss your employees for taking too many sick days. However, there are rules surrounding this, and you must be careful to ensure that you are not dismissing your employee unfairly or discriminating when dismissing them.
Yes. Before dismissing an employee, you should consider whether reasonable adjustments can support them in their role, particularly if their illness constitutes a disability. Failing to do so could expose your business to claims of unlawful discrimination.
You should assess the employee’s medical fitness, hold return-to-work meetings, consider reasonable adjustments, and follow the ACAS Guide to Discipline and Grievance. Document each step carefully, as this evidence supports your position if the employee later claims unfair dismissal.
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