One of the biggest issues for an employer is dealing with
underperforming staff members who abuse their sick leave
entitlements or access their sick leave for a stress claim
immediately ensuing a disciplinary meeting.
Whilst an employer is not to be prevented from terminating an
employee whilst on sick leave if the termination is attributed to
performance-based or other lawful reasons, it leaves the employer
exposed to a claim. In the event that an employee then lodges a
general protections (unlawful termination) claim the onus will be
on the employer to prove that the dismissal was not associated with
the employee taking sick leave (or other unlawful reasons).
What often happens is that an employer sees an underperforming
employee and, whilst frustrated does not take disciplinary action
against them because of challenging demands of operating the
business. The employee will then take their fourth instalment of
sick leave at an inconvenient time, which drives the
