The persistent problem that is long-term sick leave

Long-term sick leave is an employee issue most employers will have to handle at some point. Cases of unfair dismissal that relate to long-term absence often pop up in the news too.

In fact, the Workplace Relations Commission recently dismissed a claim by a public service employee who missed 400 days of work during 2016 and 2017.

This kind of absence can raise a range of questions. One of those, of course, is what an employer’s rights are regarding long-term absence.

What do your employment contracts say?

When a new employee joins a business, the first thing employers should do is provide them with an employment contract. The contract should set out clear rules and procedures that will govern illness-related absences.

The contract should also specify what period of time constitutes:

  • A short-term absence
  • A long-term absence
  • An unauthorised absence

The right to request a medical certificate

As an employer, you have the discretion to decide the circumstances in which your employees must provide a medical certificate. A common timeframe is three days or more.

It’s important to require that the cert is provided by a qualified medical practitioner registered with the Medical Council of Ireland.

When does an absence become long-term?

An ‘informal welfare meeting’ is a smart approach when an employee is out of work for four or more weeks on certified sick leave. It’s a useful way to maintain communication, clarify the nature of the employee’s incapacity and confirm how long they’re likely to be absent.

An informal welfare meeting should cover the following:

  • The nature of the illness.
  • What treatment the doctor has recommended.
  • How the employee feels about returning to work.
  • Any accommodations that would facilitate a return to work.
  • When they expect to return to work.

If the employee is vague about anything, seek his/her written permission to contact their doctor for a medical report.

Accessing an employee’s medical records

It’s important that your employment contracts give you a right to see an employee’s medical records. This should be clarified in the absence and sick leave policy to ensure employees are aware of appropriate procedures.

When you notify an employee that you intend to access medical records, inform him/her of the reason you’re requesting the report.

So, if you choose 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 importance of a second opinion

Contracts of employment should also confirm that you have a right to refer an employee to an independent doctor if they refuse your request to access medical records.

Medical capability hearing

So you have your medical report. Now you need to decide if a “medical capability hearing” is necessary. 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

It may happen that dismissal needs to be considered. If so, you must show that the procedure you used was fair and reasonable. Failure 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 an employee’s long-term illness was brought about by work activities, it’s still possible for you to dismiss them provided the Labour Court criteria are met.

Need our help?

If you would like further complimentary advice on long-term sick leave from an expert, our advisors are ready to take your call. Call us on 01 886 0350 or request a callback here.

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