You may recall the Workplace Relations Commission recently dismissed an unfair dismissal claim by a public service employee who missed 400 workdays during 2016 and 2017.
So, if an employee can keep a job during such a long period of absence, what are the employer’s rights when it comes to a long-term absence?
Let’s take a look.
Use the employment contract to protect your position
The first thing employers should do is provide all employees with an employment contract that sets out clear rules and procedures that will govern illness-related absences.
The contract should specify what period of time constitutes a short-term absence, what constitutes a long-term absence and what constitutes an unauthorised absence.
Give yourself a right to request a medical certificate
As an employer, you have the discretion to decide the circumstances in which employees must produce a medical certificate. Broadly speaking, most employers look for a medical certificate if employees are sick for three days or more. Ensure you specify that medical certificates be provided by a qualified medical practitioner registered with the Medical Council of Ireland.
When does an absence become long-term?
If an employee is out of work for four or more weeks on certified sick leave, you should arrange an ‘informal welfare meeting’. This informal meeting is a useful way to keep the lines of communication open, clarify the nature of the employee’s incapacity and confirm the likely duration of their absence.
A typical informal welfare meeting would cover the following:
- The nature of the illness.
- The treatment recommended by the doctor.
- How the employee feels about returning to work.
- Any accommodations that would facilitate a return to work.
- When the employee expects to return to work.
If the employee is vague or non-committal, you should seek his/her written permission to contact the doctor for a medical report.
Accessing medical records
It's important that your employment contracts give you a right to see relevant medical records. This would typically be set out in the absence and sick leave policy to ensure employees are aware of the procedures that apply if they're absent through illness.
When you notify an employee that you intend to access medical records, you must inform him/her of the reason you are requesting the report.
So if you need to obtain a medical report from the employee’s GP, you must first:
- Notify the employee, in writing, that it's proposed to make the application.
- Obtain the employee's consent in writing
The benefit of a second opinion
The contract of employment should also confirm that you have a right to refer an employee to an independent doctor if the employee refuses your request to access their medical records.
Medical capability hearing
Once you have a medical report, you need to decide whether it's necessary to hold a 'medical capability hearing'. This hearing is arranged to discuss the following:
- The employee’s long-term absence.
- The content of the medical report(s).
- Whether there are any 'reasonable adjustments' that could be implemented to facilitate a return to work.
- The likelihood of a return to work in the foreseeable future.
- The feasibility of keeping the employee’s job open.
Dismissal due to ill health
If dismissal is something you need to consider, it's vital for you to show that the procedure you used to confirm the employee’s dismissal was fair and reasonable. Failing to comply with fair procedures exposes you to a costly claim for unfair dismissal.
The test for dismissals due to medically certified incapacity was set out by the Labour Court in Humphreys -v- Westwood Fitness Club:
- The employer has all material facts concerning the employee’s condition.
- The employee has been given sufficient notice that their capability to carry out work is being questioned and may lead to dismissal.
- The employee has been given the option to influence the employer’s decision.
- The employer is seen to offer reasonable accommodations for the employee to return to work and make them fully capable.
If the employee’s long-term illness was brought about by work activities, it's still possible for you to dismiss provided the Labour Court criteria are met.
Need our help?
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Keep these long-term sick leave guidelines close. Download our free Long-Term Sick Leave guide here.