Long-term absence of employees: minimise the risks

The risk of losing an employee on long-term absence due to illness is very real and one that employers should guard against...

Contractual protection

Employers should first protect their position by providing employees with an employment contract setting out clear rules and procedures around an illness-related absence. These provisions should include notification requirements and details of when it's necessary to provide a medical certificate.

It's helpful to refer the employee to a specific absence policy where possible, specifying what constitutes short and long-term absence and what constitutes unauthorised absence.

Employer discretion to require the production of a medical certificate

Employers have discretion to decide when employees are required to produce a medical certificate. In general, employers require a medical certificate on or after the third day of absence. Medical certificates should be issued by a qualified medical practitioner registered with the Medical Council of Ireland.

The medical certificate should state the start date of the employee’s illness and when they're likely to return to work. If it's not possible to provide an estimated return date, updated weekly medical certificates are typically required.

Long-term illness

Welfare meeting

Where an employee is out of work for four or more weeks on certified sick leave, it's prudent to arrange an “informal welfare meeting”. The purpose of this meeting is to keep the lines of communication open, to clarify the nature of the employee’s incapacity, and to confirm the likely duration of the employee’s incapacity.

Depending on the reason for the employee’s absence, holding the meeting in the workplace may not be comfortable for the employee. It's recommended that the employee be provided with the option to attend the meeting at the workplace, at home, or at a neutral venue. As the meeting is informal, the employee isn't required to bring representation. However, if they wish to bring a representative for support, it's advised to accommodate such requests.

A typical welfare meeting would cover the following: 

• The nature of the illness and the doctor’s notes.
• What treatment has been recommended by the doctor and if any medication/treatment is recommended.
• How the employee feels about returning to work and if any accommodations need to be made to facilitate a return to work.
• When the employee expects to return to work.

If the employee is unsure about returning or non-committal, employers should seek written permission to contact their GP for a medical report.

Accessing medical records

The employer’s right to see relevant medical records should be addressed in the absence and sick leave policy to ensure that employees are aware of procedures that may affect them. When the employer notifies the employee of an intention to access medical records, the employer must inform the employee of the reason why.

If an employer wishes to obtain a medical report from the employee’s GP, the employer must: 

• Notify the employee, in writing, that it's proposed to make the application.
• Obtain the employee's consent in writing.

Second opinion

As part of the contract of employment, employers should reserve the right to refer an employee to an independent doctor in circumstances where an employee denies the employer access to medical records.

Medical capability hearing

Upon receipt of the medical report, the employee should be invited in writing to a “medical capability hearing”. They should also be notified of the right to be accompanied by either a work colleague or trade union official in order to discuss the following: 

• The employee’s ongoing 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.

Arrange a second medical report

Case law also indicates that it's prudent to obtain an independent medical report in addition to the employee’s medical report. 

In Lawless -v- Dublin County Council [1990] ELR 101 and Gavin -v- Bus Éireann [1990] ELR 103 a single medical report was deemed to be inadequate when assessing an employee’s capability.

In both cases, it was found that a specialist medical opinion should have been sought due to the serious nature of the employee’s illness. In the Bus Éireann case, the tribunal noted that it would have been appropriate to seek the opinion of the surgeon who operated on the employee in addition to the submitted medical reports.

Dismissal due to ill health

Before dismissal is considered, employers should assess whether alternative work can be offered. This will support a finding that the procedure leading to dismissal was fair and reasonable, thus reducing the risk of a 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 (EED037): 

• 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 the employer to dismiss provided the Labour Court criteria are met.

Nano Nagle case – fair dismissal on capability grounds

In the case of Nano Nagle School v Marie Daly, the Court of Appeal determined that it was reasonable to dismiss an employee on the grounds of medical capability in circumstances where no reasonable accommodations were available to the employer. The employer, in this case, sought the opinion of two occupational therapists and both found the employee to be incapable of carrying out all the essential tasks which were required for the position.

The employer was found to have fully explored whether it was possible to make reasonable accommodations and to have been diligent in the process of engaging with the employee. No discrimination on the ground of disability was found to have occurred.

The decision supports the view that if employees are not capable of performing the “essential tasks” of their role, then this may be grounds for termination of employment.

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