Managing Sickness Absence and An Update on the Workplace Relations Act

In last month’s edition of the BLE we brought you updates on the Workplace Relations Act. There have been further developments as to when this Act will come into effect which we discuss in this article. In addition, as the new Act will mean employees will begin to accrue annual leave whilst on sick leave, we look at how an employer might best manage sickness absence in general. Workplace Relations Act: An Update For an in-depth breakdown of the Act, readers are advised to review our May 2015 edition of the BLE. In that edition, it was speculated that the Workplace Relations Act would come into effect in July or August. However, since then Minister Bruton has confirmed that the Act will come into effect on 1 October 2015. Therefore, on 01 October 2015, the following will occur:

• The purpose of the Act is to merge the Rights Commissioner, Employment Appeals Tribunal and Equality Tribunal into a new body called the Workplace Relations Commission (WRC).
• The WRC from 01 October will hear all employment law claims, meaning that employers and employees won’t have to go to multiple tribunal bodies.
• The EAT will start to wind down from 1 October. Thus, all claims lodged before 1 October 2015 that would have involved the EAT will still be heard through the EAT process. However, once these claims have been closed off the EAT will then be abolished. This is expected to take around two years.
• The Labour Court will remain a separate body and will hear all appeals from the WRC.
• The WRC will also absorb NERA and new rules will mean that Inspectors can issue employers with on the spot fines up to €2,000. If the employer fails to pay then the WRC can prosecute the employer.
• Employees will begin to accrue annual leave whilst on sick leave. In addition, any annual leave that an employee has not taken due to sick leave can be retained by that employee for up to 15 months after the holiday leave year has ended.

  Managing Sickness Absence Given that the Act will lead to employees accruing annual leave on sick leave, many employers may wish to consider how they manage long term sickness absences. Long-terms absences normally occur when the employee is suffering from a significant medical condition with the net effect of that employee being entirely unfit to take up their working duties. An employee can be out for weeks or possible months and, in exceptional circumstances, years due to certain types of illness. By taking the following steps, an employer can more effectively manage sickness absence:

1. Keep in Contact: A common trend amongst employers is to simply allow such employees to take their extended sick leave without keeping in contact with them. The issue here is that the employee may stop sending sick certs, the employee and employer may lose contact and a long time down the line the employer realises that they still have an employee on their books without any idea as to when they will be back, or even if they will be back at all. In addition, it does not generally reflect well on an employer if they have shown no concern for the employee’s wellbeing and as to whether or not the employee can return to employment.
2. Maintain Up To Date Medical Records: If an employee is out sick long term then ensure to keep accurate medical records. An employee ought to submit regular medical certificates and if they fail to do so then the employer should request that the employee provide same. Such certificate should clearly specify how long the employee is expected to be out for and the employer should keep an open dialogue with the employees as to their expected return to work date. It is not uncommon for medical certificates to fail to specify what exactly is wrong with the employee. Employers need to thread carefully here as the Data Protection Commissioner has previously stated that employers do not automatically have a right to know this information as generally all the employer needs to know is how long the employee will be absent for. However, employers also have health and safety obligations to their employees which often requires knowledge of any injury or illness that the employee may have. Thus, where an employee is out sick long term an employer can generally easily establish a right to know the reasons for the absence so that the employer can identify how it might be reasonably accommodated in the workplace.
3. Consider Reasonable Accommodation: As above, employers should consider how the employee’s sickness might be reasonably accommodated in the workplace so as to allow the employee return to work. Appropriate medical advices ought to be sought in this respect and if it is established by a medical practitioner that the sickness cannot be reasonably accommodated in the workplace and that the employee will remain out on sick leave for the foreseeable future then the employer may have no other option but to terminate the employment relationship. Employers should always seek advice if potentially considering termination of employment and it is very important that the employee is made aware of this possibility and is afforded the opportunity to discuss the matter in a formal meeting.

If you have any questions on this article then please do not hesitate to contact our 24 Hour Advice Service on 01 855 50 50.