What happens where the employer’s medical report and the employee’s medical report differ?*
This does happen quite regularly. In those circumstances, the employer has to consider the report from the doctor treating the employee. If there is conflict then in those circumstances it may well be necessary for the employer to arrange an independent assessment by a specialist, such as a consultant, to determine matters. It is vital that employers do not start determining medical issues themselves as they are not qualified to do so.
It is very important that an employer make sure that the employee who is being considered for dismissal on the basis of incapacity, is aware that this is a possible outcome. That should be done as early as possible.
These types of cases are extremely upsetting for both employees and often for employers. The employee has done nothing wrong. The employee could well be a long-standing employee who has been loyal to the employer. It is often that the employer simply cannot keep the job open indefinitely. It is our advice always, that this is addressed in a sympathetic manner. No decision should ever be rushed.
Traps for Employers.
Employers must be wary of dismissing an employee who is out on sick leave. The employer can face either claims under the Unfair Dismissal Legislation or under the Equality Legislation. To avoid such claims, it is vital that fair procedures are always applied and that at all stages the employee is given the right to have support from a Union Official or a fellow employee. The fact that an employer may not recognise the Union, is not a reason not to allow the employee to be represented by them in the process.
There is another matter which employers sometimes fail to take account of. Where an employer has a Permanent Health Insurance Policy, specific advice is needed to be obtained from the Insurers and the Brokers and at times by the employers’ legal advisors. If termination would then cause the Permanent Health Insurance Cover which the employee might have been receiving up to then, to cease, then in those circumstances, issues can arise relating to breach of contract.
Where an employer is considering dismissing an employee because of the employee having been on extended sick leave, and the employee is suffering from an incapacity, employers should always get advice from a Specialist Employment Law Solicitor. Equally, an employee who is in that position, should get advice from a Union or better still, again from a Specialist Employment Law Solicitor, who has expertise in this area of law.
Dismissing an employee who is on extended sick leave is fraught with difficulties for both, and is one of the most complex areas of Employment Law.
Published in Irish Legal News 22 January 2021.
*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.
**In contentious cases, a solicitor may not charge fees or expenses as a portion or percentage of any award of settlement.