There is no prescribed period after which dismissal automatically becomes fair, nor must an employer keep a role open indefinitely. Fairness turns on reliable information, proper consultation and a reasonable process.

Capability, Not Conduct 

In Northern Ireland, Article 130(2)(a) of the Employment Rights (Northern Ireland) Order 1996 recognises capability as a potentially fair reason for dismissal. Under Article 130(3)(a), capability is assessed by reference to an employee’s “skill, aptitude, health or any other physical or mental quality”. Ill health can therefore justify dismissal, but only if the employer acts reasonably and follows a fair procedure.

Where absence is genuine, capability will normally be the appropriate route. Conduct may instead be relevant where the issue is not the illness itself, but an employee’s failure, without adequate explanation, to comply with reasonable absence-reporting or certification requirements. The two should not be confused: suspected misconduct requires evidence and a fair disciplinary process, while genuine ill health requires an assessment of capability and appropriate support.

Persistent short-term absence also requires care. Trigger points should prompt review, not an automatic sanction. The reasons for the absences, any underlying condition, the overall attendance record and the effect on the organisation should all be considered.

A Fair and Informed Process 

A fair process begins well before dismissal is considered. Appropriate contact, return-to-work discussions and review meetings should be used to understand the position, with the method and frequency of contact adjusted where necessary.

For long-term absence, the employer will usually need sufficiently current medical or occupational health evidence. The questions should focus on function: what can the employee do, is a return likely and within what timescale, and could a workplace change help? Occupational health advises; it does not decide. The employer must weigh that advice against the employee’s account, the requirements of the role, the impact of the absence and the available options.

That information should be used to assess whether the employer can reasonably be expected to wait longer and whether a return could be supported through reasonable adjustments, alternative duties or redeployment. Dismissal should not be the starting point. If, after proper consultation and consideration of these options, dismissal remains a possible outcome, the employee must be told clearly that their employment is at risk and be given a genuine opportunity to respond.

Northern Ireland retains the statutory dismissal procedure in Schedule 1 to the Employment (Northern Ireland) Order 2003. Where it applies, the standard procedure requires written notification and an invitation to a meeting, the meeting and decision, and an opportunity to appeal. Compliance with those steps does not, by itself, make a dismissal fair. However, where non-completion is attributable to the employer, the dismissal may be automatically unfair under Article 130A of the 1996 Order.

Employees generally require one year’s continuous service to claim ordinary unfair dismissal in Northern Ireland. Disability discrimination claims have no qualifying service requirement, so short service should not create false confidence.

The Disability Question 

In Northern Ireland, disability discrimination is governed principally by the Disability Discrimination Act 1995, as amended, including by the Disability Discrimination (Northern Ireland) Order 2006. The Equality Act 2010 does not apply to employment discrimination in Northern Ireland.

Not every illness will amount to a disability, but many long-term physical and mental health conditions may satisfy the statutory definition. Where an employer knows, or could reasonably be expected to know, that an employee is disabled and is placed at a substantial disadvantage, it must make reasonable adjustments to remove or reduce that disadvantage.

These may include a phased return, altered hours or duties, workplace adaptations, changes to an absence trigger or a suitable alternative role. Charlotte Eakin examined this duty in more detail in 'R' is for Reasonable Adjustments. Disability does not make dismissal impossible, but reasonable adjustments and realistic alternatives must first be explored.

Learning from Seminal Case Law 

Although the principal cases were decided outside Northern Ireland, they provide persuasive guidance because the core unfair dismissal test is materially similar.

The seminal case of East Lindsey District Council v Daubney (1977) remains a starting point for ill-health dismissals. The Employment Appeal Tribunal upheld a finding of unfair dismissal where the employer had not properly consulted the employee or taken sensible steps to establish the true medical position. Except in wholly exceptional circumstances, the position should be discussed with the employee. The case does not demand an exhaustive medical investigation; dismissal remains a management decision informed by medical evidence.

The leading modern authority is BS v Dundee City Council (2013). The Inner House of the Court of Session confirmed that the central question is whether the employer could reasonably be expected to wait longer and, if so, for how much longer. It reinforced the need for consultation and sensible medical enquiries. Length of service is relevant where it supports an inference that the employee will return as soon as they can. The court remitted the case for reconsideration rather than deciding that the dismissal was fair. Its judgment provides a framework, not a fixed absence threshold.

Northern Ireland decisions show how those principles operate locally. In Devine-Gallagher v Lidl (NI) Limited (2023) NIIT 23572/21, the Industrial Tribunal upheld a capability dismissal following prolonged absence and back surgery. Medical evidence indicated that a return could take a further 12 to 18 months and was not guaranteed. The process and decision were within the range of reasonable responses, and no adjustment could facilitate a return while the claimant remained unfit for any work.

In Murdock v Department of Justice (2023) NIIT 1833/20, the Tribunal upheld the dismissal of a prison officer after approximately a year of sickness absence. The employer obtained occupational health reports, held reviews and considered adjustments and alternative work. It could not reasonably be expected to wait longer. The disability claim also failed on the particular evidence, including the employer's lack of knowledge that the claimant had a mental impairment meeting the statutory definition under the 1995 Act.

Both are first-instance, fact-specific decisions rather than binding precedent, but they illustrate the evidence and process a local tribunal is likely to examine.

Practical Steps for Employers 

To manage sickness absence fairly and consistently:

• Use a clear absence policy and treat trigger points as prompts for review, not automatic outcomes.  
  
• Maintain appropriate contact and give the employee a meaningful opportunity to explain their position.  
  
• Obtain sufficiently current medical evidence and ask practical questions about function, prognosis and a possible return.  
  
• Consider whether the condition may be a disability and record the adjustments and alternatives explored.  
  
• Assess and document the operational impact of the absence and why any further period of waiting is or is not sustainable.  
  
• Warn the employee clearly if dismissal is a possible outcome and comply with the applicable statutory procedure.  
  
• Provide a genuine right of appeal and consider any new medical or other evidence raised.

Final Thought 

Sickness absence should not be reduced to an attendance percentage or a date on a policy timetable. Fairness depends on the information gathered, the consultation undertaken and the care with which alternatives are considered.

Where there is no realistic prospect of a return within a reasonable period and workable alternatives are exhausted, dismissal may be fair. Where the process is rushed, evidence is outdated or assumptions replace consultation, a potentially fair reason can quickly become an unfair dismissal.