Richard Grogan

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 EU legislation and Irish legislation, employees will accrue annual leave entitlements for a period of 15 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 if it is 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:

1. This will mean normally getting an independent medical report.
2. The employer must give notice to the employee that the question of his or her dismissal for incapacity is being considered.
3. This does mean that the employee gets a reasonable period of time to respond.
4. That the employee is furnished with any medical documentation which the employer has including medical reports.
5. Allowing the employee sufficient time to obtain their own medical report to counter any report the employer has obtained.
6. 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.

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 chequebook 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.

What happens where the employers 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.

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.

• Richard Grogan is a partner at Richard Grogan & Associates Solicitors.