How to Manage Sickness Related Absence in Your Workplace, and Reduce Costly and Time Sucking Claims

sickness-policy

Are you an employer?

Have you a member of staff absent from work due to illness?

Do you worry about how to properly manage employees’ absence?

Are you concerned that you’re not sure how to manage sickness related absence?

Many of my clients were in the same boat.

But they’re not worried anymore.

Do you want to know what they’ve done to get some peace of mind in this area?

And to do the same?

Draw up a sick leave absence management policy and procedure

A sick leave absence management policy and procedure is a bit of a mouthful, isn’t it?

Basically, you want to have a policy in place which sets out clearly what procedure is to be adopted when an employee is absent through illness.

This allows you and employees know what exactly is going to happen, and the procedure to be followed.

It’s fair because it will apply to all employees.

And it provides much appreciated clarity for everyone.

This policy should make clear:

  1. whether there is a sick pay scheme
  2. what the notification and certification requirements are when an employee is out sick
  3. that the employee can be required to attend a doctor nominated by the employer for medical assessment.

Medical certs-when, and how frequently, are they required?

You can decide how soon you require a medical certificate from an employee.

What follows is not set in stone, and you can adapt it to suit your circumstances. But, if you do follow these steps, or similar ones, you won’t go too far wrong.

So, on the 1st day of illness, the employee should be required to notify his line manager as soon as possible before scheduled commencement of duty.

He should also be expected to report the general nature of  the illness and expected return to work date.

On the 3rd working day, he must forward a medical cert. to you.

You can choose whether it is the 3rd working day or 4th working day when the cert is required-it’s your decision-but make it clear in your policy document, and ensure that all employees have received a copy of your sick leave absence management policy.

The duration of the medical certs. should also be specified, with weekly certs being submitted initially.

Requiring weekly medical certs for short term absence and accepting monthly certs for long term absences is widespread, and sensible, practice.

It is helpful, also, to define in your policy what is short term absence, what’s long term, and what is unauthorised absence.

Generally, short term absence would be 4 weeks or less, while long term absence would be an absence of more than 4 weeks.

Unauthorised absence is an absence which is not supported by a doctor’s note/cert, or not authorised by management, or not communicated using the correct procedure.

Unauthorised absences would be addressed through your workplace disciplinary procedure.

You do have one, don’t you?

Regular contact should be maintained with the employee to ascertain how he is, and the likely return to work  date.

This is also useful to maintain the employee’s’ connection to the workplace, but should be on a needs basis-for example to ensure the medical certs are being submitted- and not too intrusive or pushy.

When the absence is for 3 or 4 months, it may be time to take a closer look at the absence, and the likelihood of a return to work at all.

An appointment with the company doctor or occupational physician may be arranged at this stage, at the expense of the employer.

It may be time to invite the employee in for a chat, and a discussion including letting the employee know that his employment is under review due to the absence and the question of capacity to do the job will have to be addressed.

She should be able to give an assessment of the likelihood of a return to work, when, and whether there is anything you, as an employer, should be doing to facilitate a return to work.

The doctor or occupational physician may suggest a phased or temporary return to work. This can be monitored and re-assessed after 4-6 weeks.

Before any decision is made, though, about termination of the contract on the grounds of capability, the employee should be invited to make a submission to influence the decision, and fair procedures must be followed.

The medical report should support a decision to terminate by indicating that there is no reasonable prospect of a return to work within a reasonable timeframe.

Unfair Dismissals Act, 1977, section 6(4):

 

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

 

 

Do remember, though, that the decision to terminate the employment is yours to make, and you cannot hide behind the medical assessment and blame the doctor or try to pin the responsibility on him.

Hopefully, there will be no need to terminate and the employee can return to work.

Return to work follow up

When the employee returns to work, you should:

  1. acknowledge the return to work
  2. request staff to submit a “fit to resume” doctor’s note, by the resumption date, following long term sickness absence. Unless a “fit to resume” note is furnished, employee to be given up to a week to produce one and/or not allowed to return to work without one
  3. try to facilitate a partial return to work where the employee requests it.

In any event, you should interview all employees, regardless of how long they have been out or their illness, prior to their return to work.

Role of occupational health provider/company doctor

Your sickness absence management policy needs to make clear that an employee can be requested to attend your doctor or medical advisor for medical examination and that you, as employer, are entitled to receive details of such medical assessments.

Your occupational health provider/doctor should be able to

  • carry out pre-employment medical assessments;
  • provide advice on health related matters which affect employees’ work;
  • advise about employees fitness to undertake his full range of duties and to make recommendations on measures to assist his return to work;
  • advise on employee’s fitness to undertake modified or alternative duties;
  • advise you about areas of support for health related problems which may be affecting employment.

Quit worrying about sickness related absence

Stop worrying unduly about employees being out sick.

Get a policy drawn up to manage absences, enforce it consistently and fairly, and make sure all employees have been given a copy.

You will reduce your stress, increase your peace of mind, and significantly diminish employment related claims-for stress and unfair dismissal- against you.

How to Deal with Employees On Long Term Sick Leave-2 Vitally Important Cases

long-term-sick

Long term sick leave.

What can or should you, as an employer, do?

Have you considered a discrimination claim, on the grounds of disability, being brought against you?

Many employers have to deal with employees absent from work on long term sick leave. Two cases which should be studied closely in this area are:

  • An Equality Tribunal case (E2011-114), Eugena Carroll and H.J. Heinz Frozen & Chilled Foods Limited and
  • An Employment Appeals Tribunal case, De Sousa v Kepak Group, UD964/2011.

(At the end of this piece you will find links to the full decisions in these cases).

Let’s take a look at De Sousa v Kepak Group, UD964/2011 first.

De Sousa V Kepak Group

Mr. De Sousa was employed as a butcher with the Kepak Group from 2002. He suffered back pain in work in 2004 and in 2007, after attending a physiotherapist; he was unable to attend work due to ongoing back pain.

He returned in March 2008 but had to stop again in June 2008. He returned again in 2009 but only lasted 1 day and had to quit again.

He was certified fit to return to work in October 2010 but complained of back pain and collapsed resulting in an ambulance being called.

In November, 2010 the Site Manager wrote to him and told him that due to his absence from  and unavailability for work the contract was frustrated and dismissed him.

Mr. De Sosa brought a claim for unfair dismissal.

The EAT found that Mr. De Sosa stayed in contact with the employer during his illness and the employer was anxious to retain Mr. De Sosa in employment.

However there were no jobs in the Kepak plant that were suitable for Mr. De Sosa as administrative jobs had become computerised and other work such as sweeping the floor involved some physical activity.

The employee was assisted in his return to work being given the least demanding physical job available as a trimmer. However when this did not work out the employer wrote to him telling him that his employment was under review due to his inability to perform the contract.

The letter of termination gave Mr. De Sosa an opportunity to appeal the decision, which he did not avail of.

The EAT found that the Unfair Dismissals act 1977 had no application in this case as the contract of employment was terminated by operation of law as the contract had become inoperable and was frustrated.

Eugena Carroll and H.J. Heinz Frozen & Chilled Foods Limited

This case involved a dismissal where the employee claimed that she was discriminated against as a result of her disability and reasonable accommodation was not made for her return to work. She brought her claim for discrimination on gender and disability ground under the Employment Equality Acts.

Ms. Carroll was employed as a general operative by H.J. Heinz Frozen & Chilled Foods Limited on the 12th July 1993 and she was dismissed on the 15th June 2007.

She was initially worked in the bakery department but after it was closed she was transferred to clerical work in the purchasing area.

She was not happy there because she had no training. She then moved to engineering stores doing stock taking and later was transferred to the chilled food department. At first she worked on the frozen food line which involved lifting up to 25kgs. And she then moved to the production line which involved putting food into trays.

She went out sick from work on the end of March 2004 with repetitive strain injury and was referred for physiotherapy. Unfortunately her condition did not improve and she was referred to a consultant and it was diagnosed she was also suffering from fibromyalgia.

She was seen by the company’s occupational health advisor on a number of occasions. The complainant’s medical advice, which the company had been kept fully informed about, was that she could not work in a cold environment such as that which obtained in the chilled department and that she could not lift heavy weights.

She said that she was anxious to go back to work and she believed that the company could have found work for her in the non chilled area or in the clerical area.

She said that she had several meetings with Occupational Health and with HR but no suitable position was offered to her other than to return to the chilled area or in an area where she was required to lift weights which she could not because of her medical condition.

She said that she wanted to return to work but could not give a return date because she was not fit to return to the position in the chilled area. She was called to a meeting with her manager and HR on the 15th of June 2007 and because she was not able to give them a return to work date and there were no alternative positions in the company which could accommodate the restrictions, she was informed, given that she was on sick leave for over 3 years the company had decided to terminate her employment.

She was advised of her right to appeal. The appeal was unsuccessful.

The complainant submits that the dismissal was discriminatory in that she was not offered reasonable accommodation because of her disability.

Decision of the  Equality Officer

The 1st thing the employee has to do in a case like this is to establish a “prima facie” case of discrimination.

The Equality Officer held:

“I am satisfied that the complainant’s condition is a disability within the meaning of the Acts. Having heard the evidence I am satisfied that the complainant was dismissed from the employment for reasons connected with her capacity to perform her job due to her disability. Therefore she has established a prima facie case of discriminatory dismissal.”

“In considering this case I am guided by the Labour Court determination in the case of Humphrey’s v Westwood Fitness Club Det. No. EED037 and which was upheld by the Circuit Court. The case concerned a complaint of dismissal on the disability ground and whether the defence under section 16(1)(b) of the Acts was applicable. The Labour Court set out the test which should be applied to by an employer if they have formed a bona fide belief that the complainant is no longer able to perform the duties for which they are employed and stated:

“At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee’s condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer’s decision.

In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee’s doctors or obtained independently.

Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.

Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”

Dunne J. in the Circuit appeal stated that the there is a legal obligation under the Employment Equality Acts for an employer to take advice from either the complainant’s own doctor or an independent doctor where there are concerns in relations to the health of a worker.”

“In relation to the first part of the test which requires the respondent to obtain facts about the complainant’s medical condition, I note that the respondent had several medical reports about the complainant’s medical condition both from her GP and the company’s own doctor and these medical reports stated that she could not work in temperatures below 18 to 20 degrees or lift weights in excess of one or two kilogram’s. I note also that the respondent called the complainant to a number of meetings with the company where the option of returning to work in the light of her medical condition was discussed. I am satisfied that the respondent appraised himself of the full facts about the medical condition, through reports from the complainant’s GP and the company’s own doctor, before making a decision to dismiss her. I am also satisfied that the respondent gave the complainant notice that he was considering her dismissal due to her incapacity.”

“In relation to the second leg of the above test which relates to reasonable accommodation, I have examined the evidence and I note that the respondent made several suggestions about the complainant returning to work in the chilled department but her medical condition prevented her working there as all the operator roles were below 10 degrees and she required a temperature of between 18 and 20 degrees.”

“The company offered her subject to medical certification to bring her back to work on a three day week, light duties and a rotational position but the complainant’s GP would not certify her fit to return to the positions offered because of the temperature restrictions. I note that the respondent e-mailed all the heads of department on four occasions over the three year period of the complainant’s sick leave seeking alternative roles but there were no suitable vacancies except in the production area were available. Likewise I note that the complainant was also asked to do a virtual tour of the company with OH to identify roles which were suitable for her. A number of roles were deemed suitable and she was advised that the position would only be available if a vacancy existed. There were a number of vacancies in these areas over this period but the complainant did not have the qualifications or experience required.”

“I am satisfied that the dismissal of the complainant was due to her incapacity because of her disability to perform the work she was employed to do and in the circumstances the dismissal was not a discriminatory dismissal. Having regard to the provisions of Section 16(1)(b), I find that the dismissal was lawful in accordance with that provision.”

“I find that:

the respondent did not discriminate against the complainant on the disability grounds pursuant to section 6(2)(g) of the Acts and contrary to section 8(6) of the Acts in relation to her dismissal and that the defence under Section 16(1)(b) applied;

(ii) the respondent did not discriminate against the complainant on the disability ground pursuant to section 6(2)(g) of the Acts in relation to the provision of reasonable accommodation to the complainant in accordance with section 16(3)(b) of the Acts.”

Conclusion

If you have an employee on long term sick leave, and if you are considering dismissing on the grounds of incapacity, you will not go too far wrong if you follow the steps taken in the Carroll v Heinz case above.

Read the full De Sousa v Kepak case here.

Read the full Carroll v Heinz foods case here.

Here’s an interesting 3rd case where the employee won €40,000 for the employer’s failure to handle a long term illness/disability correctly.