Will an employee's stress-related absence lead to a claim?

First published: April 13th 2023
Last updated: April 13th 2023

Will an employee’s stress-related absence lead to a claim?

Employee absence due to stress is a difficult scenario for employers to handle.

There could be many reasons why one of your employees needs some time off due to stress so it’s important not to jump to any conclusions.

To avoid making this tricky situation worse and reduce the risk of receiving a WRC claim, carefully consider the following employment law and health and safety issues.

Does the employee have a sick note certifying their stress-related absence?

Depending on the terms of your sick leave policy, you may need to ask the employee for a medical certificate.

Many employers allow staff to self-certify for short periods of absence (for example up to three days of work).

For longer periods of absence, it’s permissible to follow your sickness absence procedure for cases involving stress.

If the employee is absent due to stress, they should issue a certificate from a medical professional in line with the terms of your absence through illness policy.

Consider if the employee’s stress is work-related?

Modern life is demanding and the cause of the employee’s stress may or not be work-related. The trouble is it’s not easy to establish the degree to which the work environment and factors outside of work contribute to an individual’s stress level.

It’s important to remember that someone may be experiencing a stressful life event and this might be the reason the employee is less able to cope with demands and deadlines at work.

Whatever the reason, work-related stress is recognised as a serious health and safety issue. As an employer, you have an obligation to ensure that, as far as reasonably practicable, the health of employees is not endangered in the course of their work.

You need to consider therefore if the demands of the employee’s work are reasonable or whether there could be something in the workplace that is outside the normal pressures of work that could be the reason for the employee’s absence.

Consider your health and safety obligations when an employee is absent with stress

To ensure that you are complying with your health and safety obligations, you should take all reasonable steps to help the employee minimise any work-related causes of stress. This might involve reducing workloads, revising targets, offering support or dealing with a conflict between co-workers.

As part of your health and safety management system, it’s a good idea to advise employees to bring up any work-related stress directly with their line manager or HR contact. This should help you identify stress-related issues early and take action to avoid a long-term absence.

How to contact employees who are absent due to stress

You should stick to the terms of your absence through illness policy. There is no legal barrier to prevent you from contacting employees during a period of absence whether it’s related to stress or for other health reasons.

You need to exercise some discretion and decide the best way to contact employees and how often to do so. This can only be determined on case-by-case basis depending on the circumstances. Some employees will appreciate regular contact and others will prefer to be the ones to contact you. Likewise, the means of communication favoured by each employee is likely to be personal. Some will prefer email while others will appreciate a phone call.

While it’s important to offer your support, you need to ensure that the employee doesn’t feel under pressure to return to work. You should ensure that the employee is aware that you are simply enquiring about their wellbeing, and, when they might be ready to return to work.

Do I need to pay staff for stress-related absences?

As of 1 January 2023, employees are entitled to receive statutory sick pay for three days of absence through illness.

You have a statutory obligation to pay employees 70% of their wages (subject to a daily cap of €110) for three days of absence so long as they provide you with a medical certificate confirming the reason for their absence.

You may have your own sick pay policy in place and you should ensure that you comply with the terms of this policy for a stress-related absence.

If the employee remains absent for stress-related reasons for a longer period than that provided under statutory sick pay, there is no obligation to pay their salary if your terms and conditions of employment don’t provide for paid sick leave.

Is it legal to dismiss an employee who is absent due to stress?

You are not obliged to keep a job open for an employee who is absent on a long-term basis.

If the employee is not capable of fulfilling their duties due to long-term sickness, you can initiate a medical capability process.

This would involve following a careful process that ensures you protect your business against the risk of an unfair dismissal claim.

The Labour Court has ruled that the following steps must precede a dismissal on medical capability grounds:

• The employer has all material facts concerning the employee’s condition.
• The employee has been given sufficient notice that their capability to carry out work is being questioned and may lead to dismissal.
• The employee has been given the option to influence the employer’s decision.
• The employer is seen to offer reasonable accommodations for the employee to return to work and make them fully capable.

Even if the employee’s long-term illness was brought about by work activities, it's still possible for you to dismiss provided the Labour Court criteria are met.

Legal risks of stress-related sickness absence

The last thing you want is a dispute relating to a stress-related absence. If you don’t comply with your obligations however, you risk suffering a grievance that will drain management time or alternatively, the employee may make a constructive dismissal claim if they can make out a case that you have breached the employment contract by asking them to work in dangerous conditions for example.

Need help with a stress-related absence?

As you can see, there is a lot to consider if an employee is absent due to stress.

As long as you have good HR policies and procedures in place, you can ensure that you can provide the right supports for your employee or in the worst-case scenario, ensure that you terminate the employment contract in a fair and legal manner.

For support with this difficult workplace issue, call 1800 719 216 today to speak with one of our HR experts.