If you take repeated sickness absences, your employer may invoke their 'absence management procedure', also known as a 'capability procedure', if they have one.
In employment law, capability refers to 'skill, aptitude, health or any other physical or mental quality' (Law at Work 2020, p 299). An employer may dismiss someone who is judged to be failing to perform satisfactorily, or someone who is too ill to continue to do their job – whether for a long period of sickness absence, or repeated short absences.
Sickness absence dismissals and people with disabilities
Under the Equality Act 2010, an employer is able to count an absence relating to an employee's disability as sickness absence. Some employers have policies which discount all or part of an absence if it relates to disability, but there is no automatic requirement for them to do so (Disability Law Service: Disability and sickness absence, p 6).
This may mean that you find yourself being taken through a capability procedure if the amount of time you have taken off work is enough to trigger it. If you have a disability, your employer is entitled to dismiss you for long-term sickness absence even if some or all of your absence was related to your disability. Your employer must, though, demonstrate that they followed a fair process, and that their decision to dismiss you was 'objectively justified and proportionate' (Law at Work 2020, p 300).
However, the not-for-profit charity, Disability Law Service, cautions that an employer should 'proceed carefully' when deciding to take a disabled employee down this route (Disability Law Service: Disability and sickness absence, p 7). This is because the Equality Act outlaws discrimination 'arising in consequence of a disability. Both absence management, and dismissal, would constitute the 'unfavourable treatment' required to gain protection under this section (there is no need for a comparator here) – such unfavourable treatment would be unlawful unless the employer could justify it as a proportionate means of achieving a legitimate aim'.
You may be able to bring a claim for disability discrimination if the employer cannot justify your dismissal in 'all the circumstances' (see the Discrimination and Equality, including Protected Characteristics section).
It is therefore vital for anyone in this position to seek advice from their rep or a national officer as soon as possible.
Workers with disabilities are, though, protected by an employer's duty to make reasonable adjustments, which applies to sickness absence policies. This could take the form of a phased return to work, working from home for a while, being moved to a workplace nearer home, being redeployed, or changing the number of hours worked.