Dismissals related to absence and/or non attendance at work due to sickness and illness are one of the most common types of dismissal from employment in Ireland.
The Unfair Dismissals Act 1977 states that a dismissal shall not be unfair if it is because of the employee’s capability to do the work for which he/she was employed.
However employers need to now consider the impact of Employment Equality legislation as any employee suffering from a disability enjoys considerable protection and “disability” is so widely defined and might well cover many illnesses which will keep an employee out of work.
Even if an employee is out of work on certified sick leave it does not follow that any termination of the employee’s employment is unfair. Section 6(4) of Unfair Dismissals Act 1977 allows the dismissal if the employee is not capable of performing the work for which he/she was employed.
Employers need to ensure that fair procedures are afforded to the employee including letting the employee know that there is a danger of the employment being terminated if the attendance record does not improve. The employer must give the employee reasonable opportunities to improve his/her attendance record.
Sickness/Illness Records Prior to Dismissal
There are two types of record dealing with absences from work due to illness:
1. An Underlying Condition
These types of absences can fall into two categories: a) frequent short absences or b) a lengthy absence related to one underlying condition.
In this circumstance the employer should obtain medical advice as to whether the problem will continue and what is the probability of the employee being able to attend work more regularly in the future. Once he does this the employer can decide whether to leave the position open for him or not depending on the needs of the employer.
2. Frequent Intermittent Absences
These absences tend to be for a short period of time, frequent, and for a range of different reasons, not one consistent problem.
The employer must carry out a fair review of the employee’s attendance record, give an opportunity to the employee to improve and give warnings that the employment is at risk if improvement is not forthcoming, and have an up to date medical opinion prior to dismissing. If the employer does this then generally he will have sufficient reason for dismissal.
Burden of Proof
i) The reason for the dismissal was the incapacity of the employee to carry out the type of work for which he was employed
ii) The employee was given an opportunity to put his side of the case
iii) The employee was given notice that his employment was at risk
iv) The reason for the dismissal was substantial.
It is noteworthy also that an employer must have a need to dismiss the employee due to the requirements of the business-there must be sound commercial reasons. It is not enough to dismiss based on poor attendance record alone where the employer is in a position to make alternative arrangements.
What is reasonable will depend on the particular circumstances of the job and business.
An employer is under no obligation to provide alternative work such as light work if the employee is unable to do the type of work for which he was employed.
If an employee is out sick and his behaviour is not consistent with being on sick leave a dismissal on the grounds of dishonesty or misconduct could be justified. But this will depend on the circumstances of each case.
For example someone with a few acres of land has successfully claimed that the bit of light work that he was doing around the farm could not be equated with a full time industrial job from which he was on sick leave. He successfully brought a case for unfair dismissal.
If you have a question or concern, please use the contact form below. We respond within 24 hours, guaranteed.