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Managing absenteeism - an overview from an employer’s perspective
PRACTICE AREA GROUP: Employment, Pensions and Benefits
A recent Irish report on absenteeism(1) 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).
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 Ireland(2) 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.
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 policy(3).
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 Distillers(3), 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 & Tofan(5). 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 www.ibec.ie/iresearch
2.  IEHC 212
3. McGrath v Trintech  IEHC 342
4. UD 2006/417
5.  5 JIEC 1101
This article was first published in Health & Safety Review, December 16, 2013