Q: I have worked for the same employer since leaving school in 1979. In 1996 I contracted Type 1 diabetes which left me insulin dependent. After returning to work in March following a year’s maternity leave I got an infection in my toe which would not heal. The infection has now spread to the bone and I am on a six month course of antibiotics which make me sick and upset my sugar levels. I have been told I could lose at least one toe and my GP has signed me off on long term sick, but I am worried I might lose my job. What is my legal position?
A: There are six grounds under which employers are legally able to sack employees, and the most significant from an ill health dismissal point of view is capability. This means that if you are physically unable to perform the job you are being paid to do your employer has the right to dismiss you. There are, however, strict procedures that your employer must follow and failure to adhere to them could mean you have a case for unfair dismissal or discrimination.
Unfortunately there are no rules regarding how long you can be off sick before an employer can initiate the process of ill health dismissal. Nonetheless, employers need to ensure that in dismissing you for ill health they are not discriminating against you under the terms of the Equality Act. If you have accrued unfair dismissal rights, dismissal for ill health would be viewed as aggressive if it was enforced within a year.
If you seriously believe you may be dismissed I would suggest you take a copy of your employment contract, together with copies of fit notes from your GP, and make an initial appointment to see a solicitor who specialises in employment law.