Ireland: Managing Absenteeism - An Overview From An Employer’s Perspective

A recent Irish report on absenteeism1 confirmed that a total of 11 million days are lost to absence every year, costing businesses €15 billion. It also confirmed that employees miss on average 5.98 days per annum, which is a reduction since the last comprehensive survey in 2004.

Why manage absence?

An employee who is absent from work, either in terms of regular short-term absences, or for longer periods, should be actively managed by the employer. Employee absence can have many negative effects on a business, and while most people may think of such effects impacting only on the employer, this is not necessarily the case. For instance, absenteeism in the workplace can also lead to poor staff morale, and poor performance (due to the increase in demand on the employees who are carrying out the duties of for an absent colleague).

Legal obligations

The main pieces of legislation underpinning the issue of absenteeism are primarily the Safety Health and Welfare at Work Act 2005 (the "SHWWA") and the Employment Equality Acts 1998-2008 (the "Equality Acts"). From a health and safety perspective, obviously where an employer is diligent about maintaining a safe place and safe systems of work, thereby leading to a safer working environment, this can assist in reducing accidents and rates of absenteeism.

The Equality Acts protect employees against less favourable treatment on a number of grounds, but in particular, disability. As the definition of disability is so broad, it can encompass illnesses, and as such, employers need to be very cognisant of the provisions of the Equality Acts in dealing with employees who are absent by reason of illness.

Primarily, an employer is not obliged to employ (or maintain in employment) anyone who is not, or is no longer capable of performing the duties of the role. This is subject to the proviso that an employee (or an applicant for employment) will not be considered to be incapable if he/she could carry out the duties of the role with measures of reasonable accommodation put in place to assist him/her in performing the role (such measures not imposing a disproportionate burden on the employer).

Examples of reasonable accommodation would be adjusting the physical work station, adjusting starting or finishing times, reassigning certain tasks and/or allowing an employee to return to work on a part-time basis (whether on a temporary or longer term basis). However, it is always advisable to seek medical advice on such measures, and consult with an employee, before making any decision on what might be best in this context.

What should employers consider?

There are many factors for employers to consider when dealing with absenteeism in the workplace. Some are referred to below, but each factor of itself could be discussed at greater length, and as such, they are highlighted for further consideration only.

Absence management policies

Employers should actively manage employee absence, whilst simultaneously promoting a culture of regular attendance. How can this be done? An absence management policy is a good place to start, in terms of setting out an employer's expectations and approach to employee absence (short or long term). The policy should also set out the employee's obligations in complying with the policy, for instance, in terms of notification (e.g, by what time they should notify the employer if they are going to be out sick, with whom and by what method they should make such contact).

Finally, the policy should also set out the potential consequences of failure to comply (whether the matter will be treated as a disciplinary one, or sick pay stopped). Sick pay entitlements should also be clear. Back to work interviews with managers have also proven to be a helpful aid in managing absence.

However, employers need to be mindful of the manner in which they treat employees in accordance with the policy. While advisers are quick to remind employers that their employees should be dealt with consistently and in accordance with their policy, no two employees are similar, nor are their illnesses.

Employers should be cognisant of the fact that if a certain situation escalates and results in a claim which will be examined by the third party, the reasonableness of the manner in which they implemented their policy will be scrutinised. Absence management is one of those areas where a "one size fits all" policy may not be appropriate in every single case. However, deviation from the policy should be the exception to the rule and should be justifiable on the particular circumstances of each case, and a record of the reason for any deviation kept for future reference.

Referring employees for medical review

Contracts of employment and sick pay policies should unequivocally provide for the right to refer an employee to a medical practitioner, and also provide that the employee authorises such medical practitioner or specialist to disclose the results of their examinations to the employer.

If a medical assessment is for the purposes of a fitness to work assessment, employers should ensure that the brief to the medical practitioner is impartial, factual and provide instructions in a non-leading manner. Employers should share the brief and report with the employee, to ensure fair procedures are complied with. If the assessment is within the context of a personal injury action, the employer will be in a position to claim privilege over the brief as long as the correspondence is for the purpose of contemplated and actual litigation.

For instance, in the case of Delaney v Central Bank of Ireland2 the employee had raised an issue of bullying and harassment against his line manager in 2006, which ultimately was not upheld. In 2007, the employee was sent to a consultant psychiatrist for an assessment. In preparation for the assessment, the psychiatrist was sent documentation but the employee was not provided with a copy of the briefing letter, or further information which was provided to the psychiatrist.

The employer asserted that the documentation sent to the psychiatrist was subject to "legal professional privilege" and refused to provide it to the employee. The solicitors asserted that the investigation report that was sent to the psychiatrist should not have been sent, as it would lead to the psychiatrist being influenced by irrelevant information.

The psychiatrist's assessment report recommended that the employee suffered from a paranoid personality disorder and should remain on sick leave. The employer relied on this report and refused to allow the employee to return to work until certified "fit" to work by a doctor, other than his own (who had confirmed that he was fit to work).

The High Court held that a serious breach of fair procedures had occurred in refusing to provide the employee with a copy of this brief, and given that the briefing letter came from one of the people against whom his complaint was made, this had the potential to display bias against the employee. Accordingly, the court made a Declaratory Order to the effect that the plaintiff was to be restored to the defendant's payroll. He was also to receive all arrears of salary and benefits under the terms and conditions of his contract of employment.

Medical certificates

Employers regularly query what is acceptable in terms of medical certificates, particularly when they are in receipt of medical certificates which state that an employee is simply "unfit for work". In my view, employers are entitled to seek further details in order that they can put in place appropriate arrangements for the employee in terms of the duties of the role, and comply with their legal obligations.

Even though it may not be possible to obtain further detail of the particular illness/condition for patient/confidentiality or other reasons, employers can seek to assess the employee's prognosis and capacity to return to work. However, I would submit that in circumstances where employers are expected to be fair and transparent in their dealings with employees, this should, where possible, be reciprocated.

Permanent Health Insurance

A Permanent Health Insurance ("PHI") policy may also be in place to provide benefits to an employee who is unable to work by reason of illness or injury. Employers considering the position of an employee on the expiry of sick pay entitlements (if any) should review their PHI policies carefully before dismissing an employee. If an employee may be entitled to benefits under a PHI policy and is dismissed, this could entitle the employee to claim damages for breach of contract for wrongful deprivation of benefits under the employer's PHI policy3.

Accrual of annual leave during sick leave

The position in relation to accrual of annual leave during periods of sick leave remains ambiguous in Ireland. Before 2009, the legal position in Ireland under the Organisation of Working Time Act 1997 (the OWTA Act) was that employees do not accrue annual leave during periods of sick leave (as annual leave is accrued based on time worked).

However, in January 2009, the Court of Justice of the European Union (CJEU) held, in the joint reference of Stringer v Revenue and Customs Commissioners ("Stringer") and Schuttz-Hoff v Deutsche Rentenversicherung Bund ("Schultz-Hoff"), that an employee who was on sick leave and was therefore unable to take his paid annual leave was entitled to take it at a later time, after the period of sick leave had ended. This decision meant that former employees in the same position were entitled to compensation in lieu of any accrued but untaken annual leave.

As Irish legislation on the accrual of annual leave during sick leave is not consistent with the decision in Stringer, this is somewhat problematic for Irish employers in the private sector. However, the decision has been followed in cases involving public sector employers, and also by the Rights Commissioners in at least one case against a private employer, but only on termination of employment (where an employee claimed an entitlement to unused annual leave which had accrued during a period of sick leave).

But there are other cases where the Employment Appeals Tribunal and Labour Court have distinguished the Stringer decision and noted that the doctrine of direct effect could not apply so as to bind a private employer to this jurisdiction in Ireland.


In any case where dismissal on the grounds of ill health is being considered, an independent medical assessment should be arranged, in order to confirm the employee's medium to long term capacity to return to work.

For instance, in the case of McGrath v Irish Distillers4, the employee had been employed by Irish Distillers since 1985 and went on maternity leave, returning in May 2002. Upon her return, she was unhappy with the duties she was assigned. She was absent from work on sick leave from 2004 until her dismissal on the 28th October, 2005. The Employment Appeals Tribunal held that she was unfairly dismissed. The procedure adopted by the employer in dismissing the employee was deemed to be unfair, as it was an unduly hasty move to dismiss the claimant after twenty years' of service without having first consulted her properly.

An example of how an employee, who is simply no longer capable of performing his/her duties of employment, may be dismissed fairly arose in Kennedy v Leonard & Tofan5. The employee had been employed as a secretary from April 11, 2007. Issues arose regarding her punctuality and also in relation to a pay rise. During 2008, the employee claimed she was being bullied and was on sick leave. A temporary secretary was employed to ease the employee's workload but she suffered ill health again in January 2009. She was absent on sick leave from 30 March 2009. She was invited to attend a meeting to discuss an investigation into her bullying claims and to discuss her sick leave on 8 April 2009 but she did not attend, claiming she was medically unfit. Fruitless attempts at mediation were made and the employee was formally dismissed from her employment by way of letter.

The EAT upheld the dismissal and noted that the employer acted reasonably in relation to the employee. The employer attempted to resolve the alleged bullying and arranged an investigation meeting, which the claimant refused to attend on health grounds. The EAT also justified the decision to dismiss the employee, as a subsequent medical examination found that it was unlikely she would ever return to her employment without experiencing undue stress.


There are many issues which must be considered by an employer in terms of managing employees who are absent by reason of illness, and such management, within the confines of the law can be challenging.

However, a clear policy, which has been communicated to employees and is implemented in a fair and reasonable manner, taking the particular circumstances into account will go some way to assisting an employer in maintaining a robust defence in the event of any claim being taken against them.


1. 'Employee Absenteeism - A Guide to Managing Absence'. Available at
2. [2011] IEHC 212
3. McGrath v Trintech [2004] IEHC 342
4. UD 2006/417
5. [2011] 5 JIEC 1101

This article was first published in Health & Safety Review, December 16, 2013

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Arthur Cox
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Arthur Cox
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions