Ireland: Returning To Work From Sick Leave

Last Updated: 8 July 2019
Article by Caoimhe Heery

We have an employee who has been on long-term sick leave and wishes to return to work on Monday.  We are concerned about their fitness to return to normal duties and wish to delay their return.  Can we do this and if so do we need to pay them their normal salary? How do we handle it?

The above is a common problem for employers, in particular, where there has been underlying disputes as to reasonable accommodation and/or the employee’s fitness to return to work. The primary concern for employers who are faced with employee incapacity is the risk of a claim of disability discrimination brought under the Employment Equality Acts 1998-2015. Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur, where on any of the discriminatory grounds, one person is treated less favourably than another is, has been or would be treated. In the case of A General Operative v A Manufacturer of Medical Devices, the Equality Officer reiterated that this definition includes temporary disabilities. She also stated that “imputing a disability to a person and treating him less favourably because of this is also unlawful under the Acts.” Employers must be aware that, even if the employee no longer has, or never had a disability, he/she could argue that he/she has been perceived to have a disability and therefore suffered unconscious or inadvertent discrimination.

Employers also have obligations under the Safety, Health and Welfare at Work Act 2005 to ensure that an employee is fit to attend at work.

So, what is the first step? An employer must remember that they are not medically trained. The initial determination, as to whether an employee is fit to attend work, rests with a qualified medical practitioner. If the employee has been on long term sick leave the employer should have had them assessed to see if a return to work date could be established and, if not, whether there was any reasonable accommodation that should have been provided.

If the company’s Occupational Health Specialist has advised that the employee is not fit to return to work, the employee should be reminded of the position and advised that it is not appropriate for them to return until they have been assessed as fit to do so. The employee should be reminded that, both the employer and the employee have a duty of care to the employee in terms of the employee’s health and safety and that the employee will not be permitted to attend work until they are deemed fit. If the employee disputes the Occupational Health Specialist’s findings then the employee should be invited to submit a report from their own medical practitioner for consideration by the company’s doctor. While best practice would say that the employer and employee’s doctors should thereafter consult with each other, if agreement cannot be reached, the company should arrange for an independent Occupational Health Specialist to provide a determination.

If the company has not had the employee assessed by their own Occupational Health Specialist, and the employee advises that they wish to return, the employer should make an appointment with an occupational health provider as a matter of urgency. In reality, such an appointment can usually be obtained within a week or so.

If during this period the employee tries to return to work and the employer has concerns as to the fitness of the employee, the employer should advise the employee that it is cognisant of its duty of care to the employee and, in those circumstances, the employee will not be permitted to return to work until an Occupational Health Specialist certifies the employee as fit.

In terms of paying the employee during this period, the company should initially review its own policies and procedures. Where the employee is certified as unfit the company’s applicable sick pay policy will apply. For example, if the employee has not exhausted their sick leave entitlement they should be paid.

It is where the employee is alleging they are fit, and the company have no evidence to the contrary, that the issue arises. The company has to be mindful of allegations of discrimination on the grounds of disability, failure to accommodate and also a potential payment of wages claim. Should there be no response at all from the company, or a deficient response, the employee could also consider a constructive dismissal case.

If an occupational health appointment can be arranged within a short period of time, the company could consider paying the employee for a defined period. This would be on the understanding that the employee would attend any medical appointment the company requests. A further option would be to confirm to the employee that should they be deemed fit, the company would back pay their salary to that date. From a practical perspective, this would assist in reducing the risk to the company of potential costs in time, legal fees and/or awards should the employee proceed with a claim.

If the employee is unsatisfied with the options put to them by the company, the employee should also be reminded of the company’s grievance and equality policies and invited to use any applicable complaints procedure.

The issue as to how an employer should, or more particularly should not, react when an employee requests a return to work was considered by the Equality Tribunal in the case of An Employee v A Retailer. The employee who had been absent on sick leave due to a stress related illness was deemed fit by his doctor to resume work. When he contacted his manager he was told not to return and that he would hear from the company’s solicitor. The employee heard nothing, and despite phone calls and several letters from his solicitor, there was no formal communication from the employer for a number of months. The company then referred the employee to be medically examined. The employee attended, however, he was never informed of the outcome of the examination and no other communication took place, despite further correspondence from his solicitor. The employee eventually resigned his position.

The Equality Officer concluded that the company imputed a disability to the employee as the company considered he was not fit to return to work due to a stress-related illness. The Equality Officer considered it reasonable for the employee to resign and awarded one year’s pay as compensation.

Conclusion

It is important for employers to remember that it is not for them to determine an employee’s fitness or otherwise to return to work and such a decision should always be deferred to a qualified medical practitioner. As with any employment related matter, it is important to have policies and procedures in place and to act in accordance with those policies. Absence policies should provide for appropriate absence management. Employees on sick leave should be assessed by the company’s Occupational Health Specialist and those on long term sick leave should be assessed on a regular and appropriate basis. Careful absence management will ensure that the company can be fully informed of any potential return to work date and reduce surprise returns by employees on long term sick leave.

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 Mondaq.com.

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

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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

Mondaq.com (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 www.mondaq.com

To Use Mondaq.com 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.

Disclaimer

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.

General

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