Capability is a potentially fair reason for dismissal under Article 130(2)(a) of the Employment Rights (Northern Ireland) Order 1996 (the “1996 Order”). This includes situations where, due to illness, an employee is no longer capable of performing the role for which they were employed. 

Employers would normally be expected to allow a reasonable amount of time for the employee to recover from their illness. The amount of time can depend on various factors including how long it will take the employee to recover, the degree of certainty that the employee will recover, how easy it is to get cover and whether or not the job can be kept open.
To establish that the dismissal is fair, employers should regularly consult with the employee, obtain appropriate medical evidence, consider the impact on the business, explore alternatives to dismissal and assess any requirement to make reasonable adjustments under disability discrimination legislation (where applicable).

Under Article 140 of the 1996 Order, an employee must have been continuously employed for a period of one year in order to bring forward a claim for unfair dismissal in NI. However, the qualifying period does not apply to discrimination claims. Accordingly, where an employee’s illness amounts to a disability, a dismissal connected to sickness absence may still be challenged.

Ultimately, whether a dismissal for sickness absence is fair will depend on the facts of the case and whether the employer has acted reasonably in all the circumstances.

This article was provided by Madison Bowyer, an Associate in the Employment Law Group at Arthur Cox NI. 

T:+44 28 9026 5886 
E: Madison.bowyer@arthurcox.com 
https://www.arthurcox.com/