It is one of the most uncomfortable questions a small business owner has to ask. Someone on your team has been signed off sick for weeks. Maybe months. The work is piling up, you are paying SSP, and you are starting to wonder whether you are allowed to bring this to an end. The honest answer is yes, you can dismiss an employee for long-term sickness in the UK, but only if you follow a specific process and only after you have done everything reasonable to support a return. Get the process wrong and you are looking at an unfair dismissal claim, and if the illness is a disability under the Equality Act, a disability discrimination claim sitting on top of it.
This article walks through how long is “long enough”, what you must do first, and where the genuine risk lies. It is written for SME owners, not HR professionals.
The short answer: there is no minimum time
UK law does not set a number of weeks or months after which dismissal becomes automatically lawful. There is no “off sick for 26 weeks and you can let them go” rule, no matter what your mate down the pub told you. What matters is whether the dismissal is fair, and fairness is judged on the process you followed and the information you had at the time, not the calendar.
That said, a few rough yardsticks are useful in practice. Most SMEs we work with start formal ill-health capability conversations once an employee has been off for around 4 weeks, run an occupational health referral somewhere between 6 and 12 weeks, and only contemplate dismissal once the absence has gone past about 6 months with no realistic prognosis of return. None of those numbers are law. They are sensible practice, and a tribunal will look at whether you behaved sensibly, not whether you hit a specific milestone.
What “fair” actually means here
Long-term sickness dismissals fall under one of the five potentially fair reasons for dismissal in the Employment Rights Act: capability on grounds of ill health. To stand up at tribunal, you have to be able to show four things:
- You had a genuine belief, based on reasonable evidence, that the employee was unable to do their job because of ill health.
- You took proper steps to find out the true medical position, usually by obtaining an occupational health report.
- You consulted the employee properly before deciding, and considered whether there were reasonable adjustments or alternative roles that would let them return.
- The decision to dismiss was within the band of reasonable responses an employer in your position could have taken.
If you skip any of those, the dismissal is at risk. If the illness amounts to a disability, you carry an additional duty under the Equality Act 2010 to make reasonable adjustments, and a failure to do that is a separate (and uncapped) head of claim.
The process, step by step
Step 1: Stay in contact
From day one of the absence, agree how often you will check in and through what channel. Weekly or fortnightly is normal. Document every contact. “We tried to call but they did not answer” is not enough. Send a follow-up email or letter every time. If the employee disengages entirely, the file of attempted contacts becomes important later.
Step 2: Get a fit note (and read it properly)
Every period of sickness over 7 calendar days needs a fit note from a GP or other registered healthcare professional. The fit note has two options: “not fit for work” and “may be fit for work”. The second option includes suggestions for adjustments. Read those. If a GP has suggested a phased return, reduced hours, or amended duties, you need to consider them seriously. Ignoring “may be fit for work” advice is one of the most common SME mistakes.
Step 3: Refer to occupational health
Once an absence is heading past a month, or sooner if the condition is serious, refer the employee to an occupational health (OH) provider. You need the employee’s consent. Ask the OH specialist specific questions in writing: when is a return likely, what adjustments would help, is the underlying condition likely to be a disability under the Equality Act, what would happen if no return is possible. Generic referrals get generic reports and they do not help you make a decision.
Step 4: Consider reasonable adjustments
If OH or the fit note suggests adjustments, look at them properly. A phased return. A change of duties. A different shift pattern. Working from home. Specialist equipment. The adjustment does not have to be everything the employee asks for, but it does have to be something an employer of your size could reasonably do. Document the ones you considered, the ones you accepted, and the ones you declined and why.
Step 5: Hold a formal capability meeting
If absence continues and the OH report does not point to a realistic return inside a reasonable period, invite the employee to a formal ill-health capability hearing in writing. Give them at least 5 working days’ notice, attach the OH report and any other evidence you will rely on, and remind them of their statutory right to be accompanied. The purpose of the meeting is to discuss the medical position, the impact on the business, any further support, and what happens next.
Step 6: Decide, in writing, with appeal rights
After the meeting, take time to consider. If dismissal is the outcome, send a written decision setting out the reason, the notice you will pay (statutory or contractual), any outstanding holiday pay, the effective date, and the right to appeal. The appeal should be heard by someone more senior or independent from the original decision-maker where possible.
When the calendar starts to matter
The two timeline questions that come up most often in SME conversations are around SSP and around the two-year service threshold.
SSP is payable for up to 28 weeks of sickness in any single period of incapacity for work. Following the Employment Rights Act 2025 reforms, SSP now starts from day one (no waiting days) and the lower earnings limit has been removed, so more employees qualify. When SSP runs out, it does not mean you can dismiss. It means SSP stops, and the employee then has to claim Universal Credit or Employment and Support Allowance from the state. The decision to keep them employed or to start the capability process is yours.
The two-year service threshold for unfair dismissal protection has changed too. Under the Employment Rights Act 2025, unfair dismissal protection now applies from day one of employment for most workers. The old “first two years are easier to manage out” mindset no longer holds. Process matters from day one. Always.
The disability discrimination trap
A disability under the Equality Act is a physical or mental impairment that has a substantial and long-term adverse effect on someone’s ability to carry out normal day-to-day activities. “Long-term” means it has lasted, or is likely to last, 12 months or more. Many long-term sickness cases meet that test, sometimes including conditions the employee themselves has not labelled as a disability.
Three implications matter for SMEs. First, the duty to make reasonable adjustments is active throughout the absence, not just at the point of return. Second, dismissing a disabled employee for absence that is itself a consequence of the disability can be discrimination arising from disability, which is harder to defend than ordinary unfair dismissal. Third, if you have not asked OH whether the condition is likely to be a disability, you are flying blind on the risk. Ask the question explicitly in the referral.
A rough timeline you can hold in your head
- Weeks 0 to 4: Stay in touch, collect fit notes, support a return where possible.
- Weeks 4 to 8: If no clear return date, raise an OH referral. Keep weekly contact.
- Weeks 8 to 16: Review OH report. Consider adjustments. Explore alternative duties. Hold an informal welfare meeting.
- Weeks 16 to 26: If no realistic prognosis of return, move to formal ill-health capability. Hearing, options, possible warning or final outcome.
- Beyond 26 weeks: If OH says no foreseeable return and no adjustments make it viable, dismissal may be a reasonable response. SSP will have ended. The decision must still be a fair one.
That timeline shrinks if the role is genuinely impossible to cover (a sole specialist in a 5-person team) and lengthens if the employee is making real progress towards return.
Three mistakes that cost SMEs at tribunal
Mistake one: dismissing without OH evidence. A tribunal will not accept “we assumed they would never come back” as a substitute for medical evidence. Pay for the OH report. It is the cheapest insurance you will buy that year.
Mistake two: ignoring “may be fit for work” advice. If a GP has signed the employee back with adjustments and you refuse to consider them, you have given the tribunal a clear hook for unfair dismissal and possible disability discrimination.
Mistake three: using the Bradford Factor as the decision-maker. The Bradford Factor is useful for spotting absence patterns. It is not a dismissal threshold. Treating a Bradford score as if it makes the decision for you takes the human judgement out of capability, which is exactly what tribunals expect to see.
Where to go next
If you are at the start of an absence and want to keep things on a sensible track, our Retained HR Support service handles the day-to-day for SMEs. If you are sitting with an absence that has gone past 8 weeks and you need a structured way through, that is exactly what retainer clients use us for. If you want to understand absence patterns across your team before any of this becomes a single case, the Bradford Factor Calculator is a free tool we built for that.
Not sure which service fits where you are? Our Which Beagle HR service is right for you? page will help you decide in 60 seconds.
And if you are about to write a dismissal letter for long-term sickness and you have not had an OH report yet, please stop and book a 15-minute call before you send it. It is the single most expensive letter in employment law to get wrong.
