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05.02.2019

Question of the month: absence due to long-term illness

Question of the month

Question: I have an employee who has been absent from work due to illness for 6 months, what are my legal obligations and do I have to keep their position open?

Your employees’ duty to make themselves available for work

Firstly, your employees are bound by both implied and express terms and conditions of employment under their contract of employment. A core term under the contract of employment which your employees must respect is the requirement to make themselves available for work.

Absence through illness

If an employee is absent from work for six consecutive weeks or more, this is generally considered long-term illness. There is no specific legislation outlining how do deal with this scenario and although you are not obliged to keep a long-term absent employee’s position open indefinitely, you do owe a duty of care to the affected employee. The following legal principles and requirements will provide a guide in terms of meetings your legal obligations.

Natural justice and fair procedures

As an employer you should always be mindful that any action you take to deal with HR issues must respect the principles of natural justice and fair procedures.

Payment during long-term absence

There is no statutory duty to pay an employee who is absent on ‘sick leave’. If your contract of employment does not provide for payment of salary during an absence due to illness and no custom and practice in your organisation indicates that your employees are paid during ‘sick leave’, you will be under no obligation to pay employees who are absent due to illness.

Employee entitlement to be paid for public holidays

Your employees retain their statutory entitlement to be paid for public holidays while they are absent through illness. This right is subject to the following time limits:

  • The first 26 weeks of sickness absence due to non – occupational illness / injury; and
  • The first 52 weeks of sickness absence that is due to an occupational illness / injury.

Employee entitlement to accrue paid annual leave

Your employees are also entitled to accrue annual leave during periods of certified sick leave. Where an employee is not in a position to take annual leave owing to an illness, they continue to accumulate statutory annual leave for up to 15 months after the leave year in which the annual leave accrued has ended. You must not pay an employee their annual leave entitlement during periods of certified sick leave even if requested to do so by the employee.

Terminating the contract of employment

Lengthy periods of absence, even for genuine reasons such as certified sickness or injury, may lead to the frustration of the employment contract and enable employers to seek to terminate the employment relationship.

Employment equality risk

Before making a decision to terminate the employment relationship you must consider employment equality legislation. An employee who is absent from work due to sickness or injury may be living with a pre-existing disability or may have acquired a disability during the course of employment. Disability is one of the nine grounds of discrimination under the Employment Equality Acts 1998 – 2015. Disability is broadly defined under employment equality legislation and includes a wide range of physical and mental medical conditions.

Reasonable accommodation

To comply with employment equality laws, you must demonstrate that you have attempted to consult with the employee and to facilitate the employee’s return to work by making (where possible) reasonable accommodations. You will need to be mindful of the duration and nature of the absence throughout this consultation process which could be an upsetting time for the employee.

If your employee has a disability, you are obliged to make reasonable adjustments to your employee’s role which includes facilitating the employees return to work following a period of sickness. What is considered reasonable will vary from one employer to the next and will depend on the size of the organisation and the resources at its disposal. Each case should be examined on an individual basis.

Disproportionate burden

You should consult with the employee concerned to understand their specific needs, research the cost of implementing any changes to the workplace and weigh up if such costs are viable and whether grants or funding are available. All attempts to reasonably accommodate an employee should be documented. Termination of the contract should only be considered where there is no way to reasonably accommodate the employee, or the proposed changes to the workplace represent a disproportionate burden on your organisation.

Has your organisation been impacted by a long-term employee absence? To discuss this question or any other HR issues affecting your business, please call our expert consultants on +353 1 886 0350.

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