If surgery could resolve your health issue, your employer should wait to find out first.

The situation

After 29 years as a paramedic, an ambulance service workerA legal category that sits between employee and self-employed. Workers are entitled to certain rights including national minimum wage, paid holiday, and protection from unlawful deduction from wages, ... developed a serious knee condition alongside menopause-related symptoms. Together they stopped her from consistently carrying out front-line duties. Her employer moved her between temporary alternative roles while managing her under its sickness absence policy. In November 2023 she was dismissed for poor attendance, with 12 weeks' notice, on medical evidence that was six months old on her knee and eighteen months old on her menopause. By the time of her appeal in January 2024, she had a knee operation booked for the following week. Her employment did not end until after that operation had taken place.

What the tribunal found

The tribunal found the dismissal unfair under section 98 of the Employment Rights Act 1996. The employer had dismissed her on medical evidence that was months out of date. Her appeal was heard a week before the operation. She was still employed at that point. The tribunal found a short delay to see how the operation went would have been a reasonable and proportionate step, particularly since her notice period ran on until after the operation had already taken place. The tribunal upheld a second claim too. Her disability was behind that discrimination, in breach of section 15 of the Equality Act 2010. Her disability-related absences and her inability to work front-line duties were a significant factor in the decision. As the tribunal put it, an employer "cannot simply close their eyes to the possibility of disability." A separate claim that the employer had failed to make reasonable adjustments was dismissed; the tribunal accepted the employer had genuinely tried to find her alternative roles and had already made allowances for menopause-related absences.

If you're facing dismissal because of ill-health absence, this case is worth holding on to. Your employer has to check your current medical position before deciding, not lean on reports that are months out of date. That matters even more if something is about to change, like an operation, a new diagnosis, or a change in treatment that could shift what happens next.

Your employer is not expected to wait indefinitely, either. Tribunals recognise that a business, especially one that has to keep essential services running, cannot tolerate absence without any limit. But if there is a specific, foreseeable event close by that could resolve or change the picture, a reasonable employer is expected to find out what happens rather than dismiss you on a stale assessment.

If you are disabled under the Equality Act and your employer is treating your health or attendance as grounds for dismissal, get advice before any capabilityOne of the potentially fair reasons an employer can use to dismiss someone, covering situations where you are unable to do your job to the required standard, including through ill health. A fair capab... hearing. Whether a dismissal like this is fair often comes down to details like how recent the medical evidence was and whether a short delay was realistic. The same details decide whether it also amounts to discrimination arising from disabilityA type of disability discrimination under section 15 of the Equality Act 2010, where you're treated unfavourably because of something connected to your disability, like time off or how a condition aff.... Those are exactly the kind of questions worth getting proper advice on early, before a decision is made that is hard to undo.

The same question of stale medical evidence came up in another case: see our case study on what your employer should do when the medical evidence about you conflicts.