Being dismissed on sick leave in Ireland is lawful in principle and unfair in practice far more often than employers expect. Capability is one of the fair grounds in section 6(4) of the Unfair Dismissals Acts 1977-2015, so an employer can end the employment of someone who cannot do the job. But under section 6(1) every dismissal is deemed unfair unless the employer shows substantial grounds, and a capability dismissal has to be built on medical evidence, consultation and a genuine look at alternatives before it can stand. Where the illness is a disability, the Employment Equality Acts 1998-2015 add a second set of duties and a second claim.
Dismissed on Sick Leave Ireland: Capability as a Fair Ground
Section 6(4) allows a dismissal to be justified by the capability, competence or qualifications of the employee for the work they were employed to do. Capability is the health limb: the employee is willing but unable. Competence is the performance limb, which runs through improvement plans and is covered in our guide to being dismissed for poor performance. The distinction matters because the evidence is different. A competence case is proved by targets and reviews; a capability case is proved by medical opinion, and an employer that tries to run an absence case on attendance statistics alone has no evidence on the only question that counts, which is whether the employee can return. To justify a capability dismissal the employer has to show that ill health was the real reason, that it was substantial enough that the employment could not reasonably continue, that the employee was told dismissal was being considered, and that the employee was heard before the decision was made.
Medical Evidence: Whose Doctor and What Question
A certificate says you are unfit now; it does not say whether you will be fit in three months. The employer needs an opinion on prognosis and on capacity, and most contracts allow it to refer you to an occupational health doctor of its choosing for that purpose. Attend. Refusing a reasonable referral hands the employer a conduct point and leaves the capability question to be answered on its evidence alone. You are entitled to know what the doctor was asked, to see the report, and to put your own treating doctor’s view beside it, particularly on the return date and the adjustments that would make a return possible. Where the two opinions differ, a fair employer resolves the difference rather than picking the one it prefers, and a dismissal taken on a report that is months old, or that answered a different question, is a dismissal taken without substantial grounds. The report should address the job as it actually is, not a job description nobody has read in years.
Consultation and the Return-to-Work Question
Consultation is the step employers most often skip, usually because the employee is absent and meetings feel intrusive. It is not optional. Before deciding, the employer should meet you, by phone or Zoom if necessary, with a representative present, and discuss the medical evidence, the likely return date, a phased return, adjusted hours or duties, redeployment to a role you can do, and a realistic timescale after which the position will be reviewed again. The Code of Practice on Grievance and Disciplinary Procedures (S.I. 146/2000) applies to a capability dismissal as it does to a conduct one: written notice that dismissal is being considered and why, a hearing at which you can respond, a decision with reasons, and an appeal. Your side of consultation is to engage: answer the letters, attend the meetings, propose the adjustments in writing and put a return date on the table that your own doctor supports. An employee who proposed a workable return and was dismissed anyway has a strong case; an employee who went silent for six months has a weaker one, whatever the employer did.
Disability and Reasonable Accommodation Under the Employment Equality Acts
The Employment Equality Acts 1998-2015 prohibit discrimination on nine grounds, and disability is one of them. The Acts define disability broadly, by reference to conditions, illnesses and impairments rather than by severity, and many long-term absences involve a disability in that sense. Where they do, section 16 of the Acts requires the employer to take appropriate measures to enable the employee to do the job, unless those measures would impose a disproportionate burden on it, and the measures must be considered, on the evidence, before a dismissal rather than dismissed in a sentence afterwards. A dismissal taken without that consideration can be a discriminatory dismissal, which has no service requirement, so the equality route is open to an employee inside the first year who cannot use the Unfair Dismissals Acts. The two routes cannot both produce redress for the same dismissal, and the choice between them is made at the outset on the strength of the evidence. A dismissal that results from pregnancy or a pregnancy-related matter is a different case again, deemed unfair without any service requirement under section 6(2A); our page on dismissal while pregnant or on family leave covers it.
Long Term Sick Leave Dismissal: Notice and the Six-Month Clock
A capability dismissal is not a summary dismissal, so notice is owed under the Minimum Notice and Terms of Employment Acts 1973-2005: one week after 13 weeks’ service, rising to eight weeks after fifteen years, or any longer period in the contract, with pay in lieu permitted. Notice does more than add weeks of pay. Under section 1 of the Unfair Dismissals Acts the date of dismissal is the date notice expired or, where proper notice was not given, the date it would have expired, and the six-month WRC time limit in section 8(2) runs from that date, extendable to twelve months only where reasonable cause prevented an earlier complaint. Illness is sometimes argued as reasonable cause; it is not safe to rely on it. File within six months of the day you were told and use the WRC Deadline Calculator to see the dates. Ask for the written statement of reasons under section 14(4), due within 14 days, because it fixes the employer to capability as its ground before it has a chance to think of another.
Redress When You Could Not Work Anyway
Section 7 provides reinstatement, re-engagement or compensation for financial loss attributable to the dismissal, up to 104 weeks’ remuneration, with a ceiling of four weeks’ remuneration where there is no financial loss, and nothing for stress or injury to feelings. In a sick leave case the arithmetic has a twist: loss must be attributable to the dismissal, so an employee who remained unable to work for a period after the dismissal has to show how the dismissal, rather than the illness, caused the loss claimed. That makes the medical evidence on fitness after the dismissal, and the job search once fit, central to the figure, and it is one reason reinstatement or re-engagement carries more weight in capability cases than elsewhere. Our guide to whether you can be dismissed while on sick leave works through the evidence in order.
What to Do While the Employer Is Deciding
- Stay certified and keep every certificate, referral letter and report;
- Attend the occupational health assessment and ask for the report;
- Get your own doctor to address the return date and the adjustments that would make it possible;
- Answer every letter, attend every meeting with a representative, and put your proposals in writing;
- Do not resign, however the process feels — resignation turns the burden around;
- If dismissed, appeal internally, request the section 14(4) reasons and note the six-month date the same day.
Employers managing a long absence need the same record from the other side: the medical opinion, the consultation notes, the alternatives considered and the reasons they were not workable. We act mainly for employees and also defend capability claims for employers, never both sides of the same dispute. Sick pay is a separate question governed by your contract and the Sick Leave Act 2022, and we advise on employment law rather than on social welfare entitlements.
Dismissal Raised During Sick Leave? Act While You Can Still Shape It
Bring the certificates, the occupational health report and the employer’s letters. One consultation establishes what the employer must show, which route fits, and the date you must file by.
Call 01 5827148