Sick Leave and Illness Leave in Irish Employment Law-How to Avoid Needless Disputes with Your Employees
Another bloody sick cert…
Yes, it’s frustrating.
You are an employer and you have had it up to the two eyeballs with these sick certs.
You know he’s been seen drinking all over the parish at the weekend. And now he’s giving you this sick cert stating that he is suffering with back trouble.
Sick or illness leave can be a thorny subject in Irish workplaces and the source of much frustration for employers.
Disputes and bad feeling can easily arise through a simple lack of clarity and planning when drawing up the contract of employment or the company policy on sick leave.
There is no general entitlement under Irish law to be paid whilst out of work due to sickness/illness.
However it is something that can be provided for between the employer and employee when agreeing a contract of employment.
Doing so prevents rows, bad feeling and disputes arising between employer and employee.
The Terms of Employment (Information) Act 1994 specifically refers to the provision for incapacity for work due to sickness as being one of the things about which the employer must provide information to the employee within two months of starting employment.
The employee, if he/she has sufficient social insurance contributions, may qualify for illness benefit from the Department of Social Protection.
If there is provision in the contract for sick pay to be paid by the employer it is common for provision to be made for the illness benefit received by the employee to be paid over to the employer. The contract of employment will probably also put a limit on the amount of paid sick leave that you are entitled to over a specific period of time, for example a 12 month period.
The employment contract should also provide clear rules and procedures as to the provision of medical certificates and notification to the employer. The medical certificate should also state when the employee is likely to be able to return to work. If this is not possible then weekly medical certificates will likely be required.
Whilst it is difficult to terminate the employment of an employee on sick leave, it is not impossible but considerations surrounding unfair dismissal should be borne in mind and legal advice sought.
Injury or Accident at Work
If the employee suffers an injury or occupational disease or is involved in an accident he/she may apply for injury benefit which is a weekly payment from the Department of Social Protection. However if he/she is being paid sick pay by the employer there will probably be a provision in the contract for the injury benefit payments to be paid to the employer.
The employee can also, of course, bring a personal injuries claim against the employer.
Public Holidays and Annual Leave
If the employee is on annual leave and suffers an illness for which he/she can provide a medical certificate he/she is entitled to annual leave at a later date in lieu of the sick days.
If the employee is certified sick then the employer cannot insist that he take annual leave to cover this period.
It is a similar situation in relation to public holidays: if the employee can certify that he was sick during a public holiday he is entitled to time off for the public holiday he missed.
Public Service and Specific Industries
Many public servants and particular categories of workers, for example teachers, enjoy better entitlements in relation to sick leave and may well enjoy paid sick leave. In fact public servants have enjoyed six months paid sick leave followed by a further six months on half pay.
Many public servants also enjoy uncertified sick pay entitlements but these perks are due to change from January, 2014 thanks to a recent Labour Court recommendation. Teachers’ uncertified sick leave entitlements have also come under pressure following the Labour Court recommendation and have changed since September, 2012.
If you are an employers and you are concerned about your existing employment contracts you might be interested in having them reviewed/drafted.