How should you manage an employee who has been absent on sick leave for an extended period of time? Can you hire a replacement? How long do they have to be absent before you can consider termination of their contract? If they are on a fixed term contract that expires, can you let it lapse? What if they are still on probation? How can you avoid a claim for discrimination? Are you allowed to maintain contact with the sick employee or is this seen as pressurising?
These are common questions we hear from employers trying to deal with the increasing numbers of staff absent on long term sick leave. In particular we have been seeing many more cases of stress related leave, anxiety, depression, post natal depression for the last number of years. Employers generally wish to be sympathetic and supportive of staff going through these difficulties but equally are finding that their businesses are in limbo while a person is absent and short-term solutions begin to cause disruptions.
Steps to be taken
- Ensure you have a strong absence policy in place that has been launched to all staff. This should include clarity and guidance on Company sick pay, notification and certification requirements and right of referral to an occupational physician for medical assessment. It should include a statement that any outstanding periods of probation will be effectively ‘frozen’ until such time as the individual returns to work.
- Adopt a common practice of completing ‘back to work’ interviews with all staff who have been absent on sick leave (certified and uncertified) regardless of the duration or illness. Absence records should be maintained and discussed openly at these meetings. Self-certification is an effective means of managing this if you put the onus on the employee to have to approach their manager on their return and explain their absence.
- All staff absent for longer than 3 days should submit a sick certificate from their doctor to their Manager. This needs to be followed up and tightly managed.
- If the absence lasts longer than this first certificate staff must submit weekly/monthly certs to the Manager and again this should be tightly managed. These certifications should come from the individuals GP and the Company does not need to fund the cost of these. At this stage the Manager is entitled to hire replacement staff to cover the individual’s role, albeit on a temporary basis.
- The individual’s Manager should maintain regular contact with the individual to monitor the status of their condition and ascertain when they are likely to come back to work. Regular contact throughout the absence is encouraged to maintain the individual’s connection to the workplace. However, this should be limited to a needs basis i.e. to ensure regular certificates are forthcoming and should not (as far as is reasonable practicable) involve queries regarding the role.
- Generally, we find that sick certifications then tend to extend to monthly intervals. It is at this point that medium term measures are put in place to cover the workload of the individual as the GP should have given some indication as to the likely duration of absence i.e. 2 months, 4 months etc…
- When this absence extends beyond 4 months (as a general guide) the employer is in a better position to take a more detailed look at the absence and likelihood of return to work. This can be a good time for HR to begin to manage the communications with the individual directly, invite them in for a general discussion and make them aware that their employment is under review. Arrange for an initial consultation with the Occupational Physician (OP) paid for by the Company. This should give the Company a good sense of the circumstances.
- The OP should then give guidance to the Company on the likely duration of absence and/or if there is anything the Company can do to facilitate the employees return to work.
- Such things as a period of reduced working hours, lighter duties, support in managing a grievance, an alternative role etc. should be explored.
- If the OP suggests a further period of absence is required – the Company will have to decide if they feel this period of time is excessive and constitutes a frustration of the employment contract. This is dependent upon the facts of each individual situation as the OP could determine the employee is unfit for the foreseeable future/3 months/8 months etc.
- The Company will then trial any suitable options on a temporary and phased basis with a view to building the employee up to return to their normal role and hours of work over a 1 to 2-month period or as directed by the doctor. If the employee returns to work they should have a weekly meeting with HR and their Manager during this time to assess the progress of their return and a review with the OP at 4-6 weeks. This will either lead to successful reintegration or a relapse of the condition resulting in the employee resuming sick leave.
- If the employee remains on/returns to sick leave a report will be required from the OP to give the Company guidance on the likelihood of a return to work and the timescale involved. At this point the Company should organise a meeting with the individual to make them aware that they are considering a termination of the contract on the grounds of capability. The employee should be encouraged to influence this decision before it is made.
- After this meeting, a decision can be made to discharge the employment contract on the grounds of frustration or capability. Employers must ensure that all fair and reasonable options have been considered, with medical advice stating that there is no possibility of return to work within a reasonable period of time before this decision is taken. There is no set time frame in law of absence before employers are permitted to make the decision to dismiss, as this is centered on the individual circumstances and the process that has been followed.
- A contract may be frustrated where there exists a change in circumstances, after the contract was made, which is not the fault of either of the parties, which renders the contract either impossible to perform or deprives the contract of its commercial purpose. Where a contract is found to be frustrated, each party is discharged from future obligations under the contract and neither party may sue for breach.
- If it is deemed that the employee cannot return to work, and there are no alternative roles available the employee can be terminated, as per Section 6 (4) of the Unfair Dismissals Act 1977as the individual is unable to carry out the role for which they were employed.
In the case of sporadic absences or lateness a more structured procedure should be followed whereby a level of tolerance is established and each time the employee breaches this they are progressed through the standard disciplinary procedure from counselling through to dismissal on the grounds of capability.
If an individual is on a fixed term contract of employment that naturally expires during a period of long term absence, the employer is not obliged to offer the employee a renewal, although employers should tread with caution here. If the employee can prove that the disability is the only reason they were not offered an extended contract they may seek a claim for discrimination.
Following a recent Tribunal decision (DS -v– a food processing Company UD 964/2011), employers now have some guidance on how to manage long-term sick leave employees. This particular case involved an employee who could not attend work due to a back injury received over two years previously. There were no other positions available in the company and the employer had acted responsibly and reasonably, having followed procedures and obtained medical assessments to see if the employee could return to work. The employer stated that this decision did not fall under the heading of ’unfair dismissal’ and consequently the Unfair Dismissals Act 1977 did not apply. The Employment Appeals Tribunal noted that the employer behaved prudently and acted reasonable in all circumstances, and that ‘the contract of employment was frustrated and had become inoperable’. As the role was clearly unable to be performed this was deemed not to fall under the heading of an “unfair dismissal “, and the legislation had no application.
In a Equality Tribunal case, D -v- leading high street retailer (DEC-E/2013/032), the Company were forced to pay €14,000 to an employee due to discriminatory dismissal, and the tribunal has ordered the re-engagement of the employee with back payment from July 2010. The Equality Officer held that the Company had failed to take account of the employee’s disability and make the reasonable accommodations to their role to facilitate them.
The employee, having been employed since 2006, was diagnosed with a condition called Benign Intracranial Hypertension (BIH) which causes an excess of fluid on the brain. In May 2009 the employee became very ill and remained off work from this time and was dismissed on 9th of June 2010. She submitted medical certificates initially every two weeks and thereafter on a monthly basis citing post-operative difficulties. The employee was also in contact by phone with members of HR on a regular basis during this time. The Company called a welfare meeting in May 2010 and indicated that they could not hold her position open indefinitely and requested that the employee provide them with a return to work date by 8th of June and that this date should not be any later than 14th of June, 2010. The Company argued that it was also agreed that the Company would consider a request for lighter duties for a period of four weeks but that this request would have to come from her doctor. The employee wrote to the Company on 4th of June 2010 indicating that she would not be in a position to return to work on the 14th of June as per her doctor. The letter stated that her doctor had advised that she should be fit to return to work within a short period, and the Company replied on the 9th of June, 2010 and stated that as she could not commit to a return to work date as requested they were terminating her employment on grounds of ill-health. The Company did not accept that the employee has a disability as no confirmation of such has ever been provided. It is also submitted by the employer that the employee did not ever make the employer aware of this disability either in the course of her employment or in her application for employment.
The Equality Officer found that the Employer in this case did not make appropriate enquiries to ascertain the extent of the employee’s condition and also failed to consult with or advise the employee before coming to the conclusion that they were incapable, on the grounds of her disability, of performing the duties for which she had been employed. They found that the employee’s disability was a factor which contributed to the employer’s decision to dismiss her and that the employer failed to provide her with reasonable accommodation.
Impact for Employers
What is interesting is that the Equality Officer has effectively set out a template for employers on the steps they must take if they wish to dismiss.
“The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she is 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.”
Note: This document is a general information guide only. Medical dismissal can be a very challenging subject and should only be considered where the employer cannot facilitate a phased return or make reasonable accommodation for the employee. You should seek professional advice when undertaking such a process.