Dismissing an Employee who is on Sick Leave.*

Dismissing an Employee who is on Sick Leave.*

At present in Ireland there is no Statutory Sick Leave Scheme. This is likely to come in. The issue that has yet to be addressed is whether there will be a single period or whether it will be a roll-over provision each year. Therefore, the question will be if an employee is out on long-term illness will they, every year, get a right to an additional paid sick leave, or will it only run from the start for a set period of time and there will be no right to accrue additional sick leave into the future, unless it is a new period of sick leave.

There is also the issue that under the EU Legislation and the Irish Legislation in Ireland, employees will accrue annual leave entitlements for a period of fifteen months from the start of their sick leave.

Where an employer has an individual, who is out sick for a long period of time, employers will often look to see is it possible to retain the employee in that employment. Dismissing an employee who is on sick leave is always difficult.

It does not matter what the reasons are, why the employer would want to dismiss the employee. What is absolutely imperative is that the employer follows fair procedures. Employers need to be extremely careful where the employee may have a disability.

Therefore, there are some specific step-by-step matters which an employer should look at before dismissing an employee who is on sick leave.

The employer should make sure that the employer is possession of all facts concerning the employee’s condition

  • This will mean normally getting an independent medical report.
  • The employer must give notice to the employee that the question of his or her dismissal for incapacity is being considered.
  • This does mean that the employee gets a reasonable period of time to respond.
  • That the employee is furnished with any medical documentation which the employer has including medical reports.
  • Allowing the employee sufficient time to obtain their own medical report to counter any report the employer has obtained.
  • The employer must allow the employee to put forward his or her arguments as to why the employee should not be dismissed before the employer makes any decisions.

In getting a medical report, the employer must seek a medical report from an independently appointed doctor to work out the employee’s incapacity. That doctor should look at the prognosis and the likely duration of the illness and whether the doctor believes that it is possible for the employee to return to work, and if so, the likely period.

Employers seeking a medical report, where an employee has an incapacity, should ask the doctor if any measures are required to accommodate the employees return to work which the doctor believes is appropriate. The employer then has to consider whether this is feasible and will not create a disproportionate financial burden on the employer. An employer, in the case of a disability will have to make reasonable accommodation. Following the Nano Nagle School case, the employer does not have to create a new job for the employee. The employer may have to see how the employees’ job can be adapted with some functions possibly being taken away to enable the employee to return to their workplace.

The Employment Equality Legislation is particularly relevant in the event that the employee has a disability. There are certain things which the Legislation will require the employer to do, namely;

  1. Adapt the premises and equipment to enable the employee to return to work.
  2. Change or alter patterns of working time or how tasks are performed or whom they are performed by.
  3. The provision of training for the employee.
  4. The Legislation does not require treatment facilities by the employer or that the employer provides something which a person would normally and reasonably be expected to provide for themselves.

This is not however something that is an open cheque book as far as the employer is concerned. The Legislation provides that the cost to the employer must not be unreasonable. There is no guidance on this but effectively what is reasonable for a very large employer will not be deemed to be reasonable for a small employer.

If you require further information please phone us on 01 – 9695781 or e-mail us at info@grogansolicitors.ie. For further information you will find guides on our website www.grogansolicitors.ie

*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.

Richard Grogan

Author Richard Grogan

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