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.

Do You Make These Mistakes as an Employer in Ireland?

employers-mistakes

Let’s admit it.

Making a costly mistake is easy when it comes to employment law in Ireland.

The scenarios below are quite common in the Irish workplace. Each of them has the potential to be very costly for the employer if he/she acts on the common misconceptions contained in these hypothetical situations.

My employee is 67 and I want him/her to retire-can I just tell him/her that he/she must retire soon?

No, not unless you have stipulated a retirement age in the contract of employment. There is no general statutory fixed retirement age in Ireland. There is a retirement age set in some public sector jobs and in occupations such as Gardai, the fire service, and the Judiciary.

However in the private sector, if it is not in the contract of employment, the employee can continue working.

I never gave my employee a contract. He has worked with me for 7 years but now I want to give him a contract to reflect the changed economic circumstances.

Firstly, just because you failed to give your employee a written contract does not mean he doesn’t have a contract. He does.

And whatever written contract you propose giving him now must reflect the terms and conditions he has enjoyed to date. Any changes to these terms must be with his consent as not to obtain his consent will amount to a unilateral changing of the contract by you as employer.

This is not permissible and will leave you open to a claim for breach of contract and/or constructive dismissal.

I am not happy with my employee’s performance and I want to replace him with someone who will do the job properly.

You cannot do so without going through a procedure which is fair and allows the employee to improve after you have brought to his attention the failings in his work. This will involve in making clear the standards required of your employee and how he is falling short.

You will need to set out the improvements required and give him a reasonable time period within which to come up to the mark. You will also need to give warnings that failure to improve sufficiently may lead to dismissal (ultimately).

My employee has been out on certified sick leave for ages and I have been told I cannot dismiss her while she is on sick leave so I am stuck with her..

This is not the case-you can fairly dismiss in certain circumstances, even when your employee is out sick. However it will depend on the needs of your workplace, the length of service of your employee, whether the sickness is a long term absence or a series of short term illness related absences.

So, while it is not easy to fairly dismiss while your employee is on sick leave, it is possible.

Always consult a solicitor in relation to cases like those outlined above; each case will be hugely influenced by the particular circumstances and making decisions based on misunderstandings can prove very costly.

Readers’ Questions

Can an employer cut my wages without notice?

No, see this article.

Where do I go if my employment rights have been infringed in Ireland?

There is a wide range of options available if your employment rights have been infringed. Click Here.

Who is not covered by unfair dismissal laws?

Read all about unfair dismissals and constructive dismissals here.

Does NERA tell the employer my complaint if I complain?

Read about NERA inspections here.

I am 66 years old-am I entitled to a redundancy payment?

Yes, the law has changed in this area. Check out redundancy in Ireland here.

Is my employer responsible for preventing sexual harassment in the workplace?

Yes. Read about sexual harassment, equality and discrimination in the workplace here.

Can I bring a case for unfair dismissal if I have less than 1 year’s service?

Yes, take a look at dismissal during the probationary period.

What is direct and indirect discrimination on the grounds of disability?

Take a look at equality and discrimination here.

Are you entitled to a written contract?

Yes, or at least you are entitled to a written statement of the terms and conditions of your employment within 2 months of commencing employment.

What are the important changes in parental leave in Ireland?

Take a look at the new parental leave entitlements in Ireland.

What are employees’ rights when a company is taken over?

This situation is covered by the TUPE (transfer of undertakings) regulations.

Can you take a case for unfair dismissal where dismissed on the grounds of age Ireland?

Yes, and you can take a case for discrimination to the equality tribunal under the Employment Equality Acts.

What is a fixed term teaching contract?

Read more about teachers’ fixed term contracts.

What are workers rights in Ireland regarding dismissal?

Read more about workers rights regarding dismissal in Ireland here.

How to calculate annual leave Ireland

 Learn how to calculate annual leave and pay here.

How many sick days are you entitled to in Ireland?

Learn about sick leave and sick pay here.

How much does it cost to bring a case to the employment appeals tribunal?

This will depend on a number of factors including whether you choose to hire a solicitor or rely on a non-solicitor such as a HR person or not. It will also depend on the strength of your case as some solicitors will take on a good case on a “no win, no fee” basis.

Sample employment contract Ireland

Contact us and we will send you a sample employment contract. Drafting your own contract however, even with the benefit of a template, can be problematic as each employment situation is different and unique.

 Are all workplace policies contractual?

No, it depends on whether the staff handbook/workplace policies have been incorporated into the contract of employment.

In most cases, we do not recommend this for two reasons.

1. If an employer fails to follow a policy/procedure (either deliberately or inadvertently) that would give the employee a claim for breach of contract on top of any other claim he/she might have (e.g. unfair dismissal, discrimination, etc.)

2. As businesses evolve, policies and procedures will need to change – if they form part of the employee’s contract of employment, you would need the consent of all the employees to any such changes. Non-contractual policies and procedures can be varied by the employer without needing to obtain the consent of the staff.

What are the basic principles of fair dismissals?

Procedural fairness and substantial grounds are needed to justify dismissal.

What is the pay for a fixed term specified purpose contract for teaching in Ireland?

 See education law in Ireland website for more information.

What are the grounds that the employment equality act 1998-2011 prohibits not to allow discrimination?

 See the 9 grounds here.

What is the average holiday entitlements per month in ireland?

Discover how to calculate holiday entitlements here.

Can employer take wages for mistakes?

It depends on the contract and whether they are fair and reasonable. See payment of wages..

What is constructive dismissal?

Read what is constructive dismissal.

Employment contract for fixed term teacher

 Employment contract for fixed term teacher

 Can an employer reduce wages?

Yes, but it is not entirely straightforward. Learn more here.

What rights does an employee have if not a trade union member in Ireland?

The employee has full employment, contractual, statutory, and constitutional rights in relation to employment, regardless of whether he is a member of a trade union or not.

What are workers right in Ireland regarding dismissal?

 Learn more about unfair dismissal here.

Calculating annual leave entitlement for part time workers

 Learn how to calculate annual leave here.

Sample grievance procedure Ireland?

 Learn more about grievance procedures here.

How to calculate redundancy pay in Ireland

Calculating redundancy entitlements.

How to deal with workplace discrimination

 Learn more about workplace discrimination here.

Define a health and safety statement in the workplace

 Learn more about health and safety statements here.

Can you take a case for constructive dismissal if you have accepted redundancy?

Generally yes.

Retirement age Ireland

 There is no statutory general retirement age in Ireland. However, some jobs do have a mandatory retirement age eg Garda, civil service. In most private sector employment though the contract of employment must provide for a retirement age if one is required.

How to calculate parental leave

 Learn more about parental leave entitlements here.

Do workers who are paid cash have employment rights in Ireland?

Yes,  they still have a contract of employment (even if not in writing).

Can someone claim unfair dismissal even during probabtion?

Yes, but your options are very limited-you can go to the Labour Court under Industrial Relations legislation but the recommendation is not enforceable. You are depending n the moral authority of the Labour Court and the bona fides of the employer.

 If an employee resigns and cites constructive dismissal does this mean he or she going to take the employer to court?

Almost certainly.

Break entitlements for 8 hours work?

Learn more about working time and rest periods here.

How to calculate holiday pay for piece rate workers Ireland

 Learn about holiday entitlements for piece rate workers here.

How long do you need to be working to claim for unfair dismissal?

 12 months.

When does a contract become a contract of indefinite duration?

 Learn about contracts of indefinite duration here.

What can I do if dismissed on capability grounds?

Bring a claim for unfair dismissal.

Grounds for instant dismissal Ireland

 See basic principles of fair dismissal in Ireland.

Penalties associated with tupe Ireland

See tupe Ireland.

Can i get paid for holidays not taken ireland?

See holiday pay and annual leave.

What  are the duties of the employer regarding workplace safety under the safety and health at work act 2005?

See employers’ health and safety obligations.

Going back to work after maternity leave laws

 Learn more about maternity leave in Ireland.

Reckonable service for part time workers for redundancy ireland

 Read about redundancy in Ireland.

Other similar frequently asked questions:

  • No contract signed, no wages
  • Legal definition of redundancy ireland
  • What is a fixed term contract
  • on temporary contracts for over 3 years when do i get permanent
  • what does tupe mean ireland
  • disciplinary procedure example
  • do employees have the right to appeal if dismissed during probation
  • can i take a career break on receiving a cid teacher in ireland
  • what is right procedure of terminating an employees contract.
  • what is a one year fixed term contract
  • termination of employment on grounds of capability
  • are men entitled to maternity leave in ireland
  • unfair dismissal v wrongful dismissal followed
  • can a case of gross misconduct be void if the correct procedures were not followed
  • how to dimiss an employee legally in ireland
  • can u legally cut employees contracted hours in ireland
  • examples of what to include in a fixed term contract of employment in ireland
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  • dismissing an employee for sickness ireland
  • what is a fair dismissal procedure in republic of ireland
  • right to terminate contract of employment without notice
  • is the time i am on maternity leave counted as continious service ireland
  • can you claim holiday pay when off sick
  • when an employee alleges unfair dismissal who needs to prove that the dismissal of an employee indeed has taken place
  • employer responsibilities for bullying
  • payment for annual leave on termination ireland
  • is maternity leave viewed as continuous service in ireland

The answers to most of the questions above can be found on this site-simply use the search box in the right sidebar.

If you need professional advice or assistance in this area, do not hesitate to contact us.

Discover how to reduce the chances of expensive claims by employees.

Sick Leave and Illness Leave in Irish Employment Law-How to Avoid Needless Disputes with Your Employees

sick-leave-ireland

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.

You might also be interested in how to manage sickness related absence from the workplace.

You can learn more about our services in this area here.