My employee has been off sick for three months. What can I do?

2nd September 2026

By three months, most small employers have stopped wondering whether the absence is genuine and started wondering when it ends. Cover is costing money, the team is tired, and nobody has told you what you are allowed to do about it.

There is no legal limit on how long someone can be off sick. There is no point at which the law hands you a decision. What there is, is a process, and it takes weeks rather than days. Follow it and you can eventually end the employment fairly if you have to. Skip it and you cannot, no matter how long they have been away.

Here is what to do, in the order to do it.

You are not waiting for permission

Nothing says employment ends after a set period of illness. Statutory sick pay runs for up to 28 weeks and is paid at £123.25 a week or 80 per cent of average weekly earnings, whichever is lower (rate as at 2026). That figure caps the pay, not the job.

What the law does give you is a lawful reason to dismiss if it comes to that. Section 98 of the Employment Rights Act 1996 lists capability as a potentially fair reason, and defines capability by reference to “health or any other physical or mental quality” as well as skill. So dismissal on health grounds is available to you. Whether yours is fair turns on the rest of that section, which asks whether you acted reasonably in treating that reason as sufficient, judged against the size and resources of your business. A tribunal reading that will want to see four things: that you established the medical position, that you consulted the employee, that you considered what might have brought them back, and that you let them respond before you decided.

At three months you have probably done one of those. This month is for the rest.

Step one: get a medical opinion that answers your question

A fit note tells you the employee is not fit for work. It does not tell you the thing you need, which is whether they are coming back and roughly when.

For that you need a report, and you need consent first. If you are asking a doctor who has treated them, the Access to Medical Reports Act 1988 requires you to tell the employee you intend to apply, obtain their agreement, and tell them they can refuse, see the report before it reaches you, and ask for corrections. Acas says the same in plainer terms: get permission, and ask only for what you need.

Ask narrow, useful questions. When are they likely to be fit to return? Are they fit for their own role, or a modified version of it? What changes would speed that up, and for how long would those changes be needed? Is the condition likely to be lasting? Avoid asking for a diagnosis. You do not need one and you are not entitled to their records.

Occupational health is usually better value than a GP letter here, because occupational health writes for employers and answers the questions above directly. Many small firms buy a single assessment without a retainer. If the employee refuses consent for a report, say so in writing, explain that you will have to make a decision on the information you have, and then do exactly that.

Much of this applies whatever the cause. If the absence began the day after a difficult conversation, the evidence problem is sharper still, and there is more on it in what to do when someone is signed off with stress after a performance conversation.

Step two: meet them, formally

Contact during a long absence is not harassment, and silence is not kindness. Acas advises agreeing how often you will be in touch and with whom, which is worth doing even three months late.

Then hold a formal absence review meeting. Invite them in writing, say what the meeting is for, and say plainly that continued employment is one of the things under discussion if that is true. Where a meeting could lead to dismissal or other formal action, the Acas Code of Practice confirms the employee can be accompanied by a colleague or trade union representative. Offer that, and hold the meeting somewhere neutral or by video if they are not up to travelling.

Take notes and keep them. From 1st October 2026 an employee will have six months rather than three to bring most tribunal claims, so a meeting you hold this month could still be argued over well into next year.

Step three: work out whether the Equality Act is in play

If the condition is likely to last twelve months or more and has a substantial adverse effect on ordinary daily activities, the employee is probably disabled within section 6 of the Equality Act 2010, and you owe a duty to make reasonable adjustments under section 20. Three months of continuous absence with no clear end date puts you squarely in that territory. Assume the duty applies unless the medical evidence tells you otherwise.

In practice that means considering a phased return, reduced or altered hours, a change of duties, equipment, or a move to a different role. Acas also treats discounting some absence, or moving your trigger points, as a possible adjustment. You are not obliged to do everything suggested, but you are obliged to think about each one properly and be able to say why you ruled it out.

This matters more than the unfair dismissal question, because a discrimination claim needs no qualifying service at all.

Two dates that change your arithmetic

Statutory sick pay stops at 28 weeks, which from a start date in early June lands in December. If you can see it running out before they are fit, you must give them form SSP1 on or before the beginning of the 23rd week so they can claim Employment and Support Allowance. Missing that is a small administrative failure that reads very badly later.

The second date is 1st January 2027, when the qualifying period for ordinary unfair dismissal drops from two years to six months and the cap on compensation is removed. If this employee has under two years’ service, the calculation you can do today is not the one you will be able to do in January. We covered what that means in practice in our piece on the January change.

What to do this week

Write to the employee, propose an absence review meeting, and ask for consent to an occupational health referral in the same letter. Check the contract for what company sick pay says and when it stops. Work out the week their statutory sick pay ends and diary week 23. Write down what cover has cost so far and what the absence is doing to the team, because if you ever reach a dismissal decision you will need that reasoning in contemporaneous form, not reconstructed.

What not to do: dismiss on the strength of a fit note alone, stop paying without checking the contract, wait quietly in the hope they resign, or let another three months pass because the conversation is uncomfortable. Delay does not make the decision safer. It just makes the eventual dismissal look like something you did when you ran out of patience rather than something you reached on evidence.

Tarn.hr provides HR guidance based on UK employment law and Acas codes of practice. It does not constitute legal advice and should not be relied upon as such. Employment law is complex and turns on the facts of each case. For any situation involving significant legal risk, potential tribunal claims, or matters of particular sensitivity, you should seek advice from a qualified employment solicitor. Tarn.hr is not responsible for any decisions made on the basis of its guidance.