Richard Grogan: Dismissal of an employee who is on sick leave
Labor law attorney Richard Grogan of Richard Grogan & staff deals with the increasingly important issue of dismissing a sick or sick employee.
There is currently no statutory sick leave system in Ireland. This is likely to happen. The question that remains to be clarified is whether it is a single period or whether it is an annual roll-over provision.
The question therefore arises: Is an employee entitled to an additional paid sick leave every year in the event of a prolonged illness or does it only run for a certain period from the beginning and there is no entitlement to additional sick leave in the future, unless it is about a new sick leave?
There is also the problem that workers are entitled to annual leave under EU and Irish law for a period of 15 months from the start of sick leave.
If an employer has a person who is sick for a long period of time, the employer will often check whether it is possible to keep the employee in this employment relationship. Resigning an employee who is on sick leave is always difficult.
It doesn’t matter why the employer wants to fire the employee. It is imperative that the employer follows fair procedures. Employers need to be extremely careful where the employee may be disabled.
Hence, there are some specific step-by-step matters an employer should consider before dismissing an employee in the event of illness.
The employer should ensure that he has all the facts about the employee’s condition:
- This usually means you will receive an independent medical report.
- The employer must inform the employee that the question of his dismissal for incapacity for work is being examined.
- This means that the employee is given a reasonable period of time to respond.
- That all medical records available to the employer, including medical reports, are made available to the employee.
- Allowing the employee sufficient time to obtain their own medical report to counter a report from the employer.
- The employer must allow the employee to present their arguments as to why the employee should not be dismissed before the employer makes a decision.
In order to obtain a medical report, the employer must obtain a medical report from an independently commissioned doctor in order to clarify the employee’s incapacity for work. This doctor should consider the prognosis and the likely duration of the illness and whether the doctor considers a return to work possible and, if so, the likely length of time.
Employers requesting a medical opinion when a worker is incapacitated should ask the doctor whether any measures that the doctor deems appropriate are necessary to enable the worker to return to work. The employer must then check whether this is feasible and does not burden the employer disproportionately. In the event of a disability, the employer must make reasonable provision.
After the Nano Nagle School case, the employer does not have to create a new job for the employee. The employer may need to consider ways of adapting the employee’s workplace, possibly removing some functions to allow the employee to return to his or her workplace.
The Equal Opportunities Act is particularly relevant if the employee has a disability. There are certain things that the law requires of employers, namely:
- Adjust the premises and equipment to allow the employee to return to work.
- Change or change work time patterns or the way tasks are performed or by whom they are performed.
- The provision of training for the employee.
- Legislation does not require treatment by the employer or that the employer do what would normally and reasonably be expected of a person to take care of himself.
For the employer, however, this is not an open checkbook. The law stipulates that the costs for the employer must not be unreasonable. There is no guidance on how to do this, but what is appropriate for a very large employer is not considered appropriate for a small employer.
What happens if the employer’s medical report and the employee’s medical report are different? This happens pretty regularly. In these circumstances, the employer must take into account the opinion of the treating doctor. In the event of a conflict, under these circumstances it may well be necessary for the employer to arrange for an independent assessment by a specialist, for example a consultant, to clarify the matter. It is important that employers do not start investigating medical problems on their own as they are not qualified to do so.
It is very important that an employer ensures that the employee who is being considered to be dismissed for incapacity for work is aware of these possible consequences. That should be done as early as possible.
Such cases are extremely worrying for both employees and often employers. The employee didn’t do anything wrong. The employee can be a long-term employee who is loyal to the employer. It often happens that the employer just cannot keep the position open indefinitely. It is always our advice that this be addressed in a personable way. No decision should ever be rushed.
Employers must be careful not to fire an employee who is on sick leave. The employer is entitled to claims either under the Dismissal Protection Act or under the Equal Opportunities Act. To avoid such claims, it is essential that fair procedures are always followed and that the worker has the right to be assisted by a union official or colleague at all stages. The fact that an employer may not recognize the union does not mean that the employee will not be represented by him in the process.
There is another aspect that employers sometimes fail to consider. If an employer has permanent health insurance, specific advice is required from the insurers and brokers, and sometimes the employer’s legal counsel. If the termination would then lead to the expiry of the employee’s previous permanent health insurance cover, questions relating to breach of contract may arise under these circumstances.
If an employer is considering dismissing an employee because the employee has been on sick leave for a longer period and the employee is unable to work, the employer should always seek advice from a lawyer specializing in labor law. Likewise, an employee in this position should seek advice from a trade union or, even better, from a specialist lawyer specializing in labor law.
The termination of an employee who has been on sick leave is difficult for both and is one of the most complex areas of labor law.