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Can an employer discipline or dismiss an employee for capability reasons, while they are off sick?

Published 15 March 2014

Can an employer discipline or dismiss an employee for capability reasons, while they are off sick?

It's a common myth that workers can't be sacked while they are off sick!!

Being off sick is no protection against being disciplined or dismissed for another reason. One of the five fair reasons the Employment Relations Act sets out for dismissing an employee is on grounds of capability, which is often used by unscrupulous employers who want to avoid paying redundancy payments. They do this by claiming an employee has been dismissed because of their performance or due to long term sickness absence.

While an employee is signed off sick and unfit to work, an employer may try to initiate disciplinary proceedings in the hope that the employee will not be able to attend any hearings thus being unable to defend themselves. This leaves the employee vulnerable to being dismissed under grounds of Capability.

Whether or not the employee would succeed in a claim for unfair dismissal, if this happens, is dependent on their ability to demonstrate that the employer's actions were unreasonable in all actions, i.e. they did not act in a manner in which any other employer would.

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