Don’t let absenteeism damage the health of your business

Checking up on absenteeism: Overly intrusive questioning or requests for irrelevant health information could run the risk of breaching an employee's data protection rights

Staff sick leave is often a delicate topic; employers want to remain supportive of their team but high absenteeism levels can seriously damage a company’s bottom line. Here, Janice Walsh, an associate in ByrneWallace Solicitors, outlines how to ensure you always stay on the right side of the law when dealing with this issue and keep a clean bill of health in legal terms

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Advisor

Illness is a fact of life. However, staff sick leave can cost employers millions of euro each year and cause huge levels of disruption to business. It is estimated that absenteeism rates in the public sector – which stand at over 11 days per year – cost the State between €400 and €500 million annually. Absenteeism rates in the private sector have fallen to about 5.9 days in recent years indicating that employers are tackling this difficult issue.  However, there is no doubt that more can be done and below are some tips for employers.

Always have a written sick leave policy dealing with the following:

• Sick pay: Unlike the UK, there is no statutory sick pay scheme in Ireland but many employers opt to pay sick leave up to a certain period. The exact terms and conditions of sick pay should be set out in either the contract of employment or in a separate staff policy as employees whose entitlements are not clearly set out may claim that they have an implied right to sick pay through custom and practice in the organisation.
• Evidence of illness: Most employers require a medical certificate for absences of longer than three days. However, GP certificates often give very little information about the nature, cause or duration of an employee’s illness. Therefore, an employer may decide to refer an employee to a company nominated doctor to obtain a more detailed report. Contracts of employment or staff handbooks should refer to the employer’s right to require an employee to attend a company nominated doctor. However, requests for a medical report should be focused and limited to that which is directly relevant as overly intrusive questioning or requests for irrelevant information could run the risk of breaching the employee’s data protection rights or rights under employment equality legislation
• Holidays during sick leave: The Organisation of Working Time Act 1997 links the entitlement to paid annual leave with time actually worked by an employee. However a number of decisions of the Court of Justice of the European Union have cast doubt on this and it is generally expected that the Organisation of Working Time Act will be amended in the near future. The decisions from Europe indicate that a worker accrues paid holiday entitlement during sick leave and that a worker who is not able to take holidays due to a period of sick leave must be allowed to carry those holidays over to the next leave year.
• Regular contact: Employers should keep in contact with employees during sick leave and obtain updates on the employee’s condition. A paper trail of any meetings or correspondence in relation to sick leave should be maintained.
• Return to work interviews: An informal meeting on an employee’s return to work is thought to reduce ad hoc absence. The purpose of the meeting should not be to interrogate an employee about why they were out but rather to confirm that they are fit to be back, whether or not there is any further support the employer can provide and if there is any underlying work-related cause of their illness.

The Employment Equality Acts prohibit discrimination of employees on a number of grounds, one of which is disability. Disability is given a very broad definition in the acts and has been held to include many conditions, e.g. a lung infection, a phobia of rats, obsessive compulsive disorder, whiplash etc.  Many workers on sick leave will fall within the statutory definition of disability.

The acts require an employer to take "appropriate measures" to accommodate a person with a disability provided those measures don’t impose a "disproportionate burden" on the employer. Appropriate measures could include adapting a place of business to the disability, changing patterns of working time or redistributing tasks. This is often referred to as "reasonable accommodation".

Employers’ FAQs

My employee has been out sick all week with a doctor’s cert but I saw him playing golf in the local club last night. Can I discipline him?

Not necessarily. An employee can be genuinely unfit for work but fit to pursue other activities; it will all depend on the nature of the illness. I suggest referring the employee to a company appointed doctor for assessment. 

My employee has been off sick for four weeks. Her doctor says she is fit to come back but on a part-time basis initially. Do I have to allow this? I want to dismiss her because I need a full-time employee.

Under the Employment Equality Acts, an employer has to reasonably accommodate an employee with a disability unless doing so would put a disproportionate burden on the employer. What is a disproportionate burden will depend on the size and financial resources of the organisation but case law from the Equality Tribunal shows that it is very difficult for an employer to successfully show that a disproportionate burden exists. It is very unlikely that you could successfully argue that you cannot facilitate the employee on a part-time basis initially. If you refuse to reasonably accommodate the employee and instead dismiss her, you run the risk of being found guilty of discriminatory dismissal for which the employee’s redress from the Equality Tribunal could be compensation of up to two years’ remuneration.

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