Can You Be Dismissed While on Sick Leave?

You can be dismissed while on sick leave in Ireland, but only in the way the Unfair Dismissals Acts 1977-2015 allow, and that is narrower than most employers assume. Sick leave is not a shield against dismissal, and it is not a reason for one either. The employer has to show substantial grounds under section 6(1), the ground it will rely on is capability under section 6(4), and capability has to be proved with current medical evidence, real consultation about the prognosis and the alternatives, and a fair process. Alongside that, the Employment Equality Acts 1998-2015 add a duty of reasonable accommodation where the illness is a disability, with no service requirement. This guide works through each of those elements, fixes the date the six-month clock starts when you are dismissed while absent, and lists the documents to gather now.

1. Dismissed While on Sick Leave: Who Has to Prove What

Every dismissal is deemed unfair unless the employer shows substantial grounds justifying it. That is section 6(1), and it means the employee dismissed on sick leave does not have to prove the dismissal was unfair; the employer has to prove it was fair. Section 6(4) lists the grounds it can use: capability, competence or qualifications; conduct; redundancy; and contravention of statute. Ill-health falls within capability. An absence is not misconduct, and an employer that runs a sickness absence through its disciplinary procedure, with warnings for being certified unfit, has usually chosen the wrong ground and the wrong process from the start. The employee’s first step after any dismissal is the request for a written statement of the reasons under section 14(4), due within 14 days, which fixes the employer to one ground before the file is examined against it.

2. Capability as a Fair Ground Under Section 6(4)

Capability is about whether the employee is able to do the job, now or within a foreseeable period. It is a different question from competence, which asks whether the employee does the job well enough and is the ground behind performance plans; our guide to dismissal for poor performance, PIPs and capability covers that process. In an ill-health case the employer has to be able to answer three questions from its own records: what the medical position actually was at the date of the decision; what the employee was told and asked before the decision; and what alternatives to dismissal were considered and why they were rejected. A dismissal letter that says the employer could no longer sustain the absence, without those three answers behind it, states a conclusion rather than a ground. Our practice page on being dismissed on sick leave or for capability sets out how the WRC tests each one.

3. The Medical Evidence the Employer Needs

The employer needs up-to-date medical evidence. That means evidence about the condition and the prognosis at the time of the decision, not a certificate from six months earlier or a manager’s impression of how the employee seemed. In practice it comes from an occupational health assessment arranged by the employer, from the employee’s own treating doctor, or both, and the questions it has to answer are whether a return to work is likely, when, and on what terms. Where the reports disagree, the employer has to engage with the disagreement rather than pick the report it prefers. The employee’s side of this is to cooperate: attend the assessment, provide the certificates and any specialist letters, and put in writing anything the employer should know about the likely timescale. An employee who refuses to engage with medical assessment makes the employer’s task easier, because the employer can only decide on the evidence it has.

4. Consultation: Prognosis and Alternatives

Medical evidence on its own is not enough. The employer has to consult the employee about the prognosis and about the alternatives to dismissal before deciding, and the consultation has to be genuine: a meeting at which the decision has already been taken is not consultation. The alternatives will depend on the job and the condition, but they ordinarily include a further period of leave, a phased return, reduced or different hours, adjusted duties, and a different role. The process around that consultation should match the principles of the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146/2000): the employee is told in writing that dismissal is being considered and why, is given the medical evidence relied on, has the chance to respond with a representative present, receives a written decision with reasons, and can appeal to someone not previously involved. The record of those steps is the employer’s case at the WRC. Its absence is the employee’s.

5. The Employment Equality Acts and Reasonable Accommodation

Where the illness amounts to a disability, a second statute applies. Section 16 of the Employment Equality Acts 1998-2015 requires the employer to take appropriate measures to enable a person with a disability to do the job, unless those measures would impose a disproportionate burden, and a dismissal for a disability-related absence can be challenged as a discriminatory dismissal on the disability ground. Two features of that route matter here. First, it has no service requirement, so it is open to the employee dismissed inside the first year who cannot use the Unfair Dismissals Acts. Second, it asks a question the capability analysis does not: not only whether the employer waited and consulted, but whether it considered and, where reasonable, provided the accommodation that would have allowed a return. The two complaints go to the WRC on the same form and are usually lodged together; the same dismissal is not compensated twice, and which route carries the case is decided on the documents. Our guide to automatically unfair dismissals in Ireland explains which grounds waive the one-year rule under the Unfair Dismissals Acts and why the equality route exists for the others, disability among them.

6. Sick Pay and the End of Sick Pay

Employees are entitled to statutory sick pay under the Sick Leave Act 2022, and many contracts provide for a longer period of contractual sick pay as well. Neither entitlement has anything to do with whether a dismissal is fair. The end of contractual sick pay is a financial event, not a capability finding, and an employer that treats the expiry of sick pay as the trigger for dismissal has not answered the section 6(4) question. The same is true of an absence management policy that sets a number of weeks after which employment is reviewed: the policy may fix when the employer looks at the position, but it cannot replace the medical evidence and consultation that decide it.

7. The Date of Dismissal When You Are on Sick Leave

The six-month limit for a WRC complaint under section 8(2) runs from the date of dismissal, and section 1 fixes that date as the date notice expires or, where no proper notice was given, the date on which proper contractual or statutory notice would have expired. Statutory notice under the Minimum Notice and Terms of Employment Acts 1973-2005 is one week after 13 weeks’ service, two weeks after two years, four weeks after five, six weeks after ten and eight weeks after fifteen, and pay in lieu is permitted. For an employee dismissed while absent this matters in two directions: the clock may start later than the dismissal letter suggests, and an employer that dismisses a sick employee without notice, where there is no gross misconduct, owes the notice as a separate claim. The limit is extendable to twelve months only where reasonable cause prevented an earlier complaint, and while illness that genuinely prevented action can in principle be reasonable cause, it is argued after the event and granted narrowly. The WRC Deadline Calculator works the date out from your service and notice; file well inside it.

8. What to Gather

• Medical certificates for the whole absence, in date order, and the letters or emails that sent them;
• Occupational health reports, the referral letters that prompted them, and any report from your own doctor or specialist that the employer was given;
• The correspondence: every letter, email and meeting note about the absence, the return to work, any adjustments discussed, and the decision;
• The contract, the sick pay policy and the absence management policy, which fix what the employer promised to do and when;
• The dismissal letter and the section 14(4) statement of reasons, read against everything above;
• Payslips for the period before the absence, which fix a week’s remuneration for any compensation claim under section 7.

Keep copies off the employer’s systems. Employers defending a capability dismissal get the same analysis from the other side: the file either shows the evidence, the consultation and the alternatives, or it does not. We act mainly for employees and also defend claims for employers, never both sides of the same dispute.