by Caoimhe Heery, Associate Solicitor at Ronan Daly Jermyn
We have an employee who has been on long-term sick leave and wishes to return to work on Monday. We are concerned about their fitness to return to normal duties and wish to delay their return. Can we do this and if so do we need to pay them their normal salary? How do we handle it?
The above is a common problem for employers, in particular, where there has been underlying disputes as to reasonable accommodation and/or the employee’s fitness to return to work. The primary concern for employers who are faced with employee incapacity is the risk of a claim of disability discrimination brought under the Employment Equality Acts 1998-2015. Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur, where on any of the discriminatory grounds, one person is treated less favourably than another is, has been or would be treated. In the case of A General Operative v A Manufacturer of Medical Devices, the Equality Officer reiterated that this definition includes temporary disabilities. She also stated that “imputing a disability to a person and treating him less favourably because of this is also unlawful under the Acts.” Employers must be aware that, even if the employee no longer has, or never had a disability, he/she could argue that he/she has been perceived to have a disability and therefore suffered unconscious or inadvertent discrimination.
Employers also have obligations under the Safety, Health and Welfare at Work Act 2005 to ensure that an employee is fit to attend at work.
So, what is the first step? An employer must remember that they are not medically trained. The initial determination, as to whether an employee is fit to attend work, rests with a qualified medical practitioner. If the employee has been on long term sick leave the employer should have had them assessed to see if a return to work date could be established and, if not, whether there was any reasonable accommodation that should have been provided.
If the company’s Occupational Health Specialist has advised that the employee is not fit to return to work, the employee should be reminded of the position and advised that it is not appropriate for them to return until they have been assessed as fit to do so. The employee should be reminded that, both the employer and the employee have a duty of care to the employee in terms of the employee’s health and safety and that the employee will not be permitted to attend work until they are deemed fit. If the employee disputes the Occupational Health Specialist’s findings then the employee should be invited to submit a report from their own medical practitioner for consideration by the company’s doctor. While best practice would say that the employer and employee’s doctors should thereafter consult with each other, if agreement cannot be reached, the company should arrange for an independent Occupational Health Specialist to provide a determination.
If the company has not had the employee assessed by their own Occupational Health Specialist, and the employee advises that they wish to return, the employer should make an appointment with an occupational health provider as a matter of urgency. In reality, such an appointment can usually be obtained within a week or so.
If during this period the employee tries to return to work and the employer has concerns as to the fitness of the employee, the employer should advise the employee that it is cognisant of its duty of care to the employee and, in those circumstances, the employee will not be permitted to return to work until an Occupational Health Specialist certifies the employee as fit.
In terms of paying the employee during this period, the company should initially review its own policies and procedures. Where the employee is certified as unfit the company’s applicable sick pay policy will apply. For example, if the employee has not exhausted their sick leave entitlement they should be paid.
It is where the employee is alleging they are fit, and the company have no evidence to the contrary, that the issue arises. The company has to be mindful of allegations of discrimination on the grounds of disability, failure to accommodate and also a potential payment of wages claim. Should there be no response at all from the company, or a deficient response, the employee could also consider a constructive dismissal case.
If an occupational health appointment can be arranged within a short period of time, the company could consider paying the employee for a defined period. This would be on the understanding that the employee would attend any medical appointment the company requests. A further option would be to confirm to the employee that should they be deemed fit, the company would back pay their salary to that date. From a practical perspective, this would assist in reducing the risk to the company of potential costs in time, legal fees and/or awards should the employee proceed with a claim.
If the employee is unsatisfied with the options put to them by the company, the employee should also be reminded of the company’s grievance and equality policies and invited to use any applicable complaints procedure.
The issue as to how an employer should, or more particularly should not, react when an employee requests a return to work was considered by the Equality Tribunal in the case of An Employee v A Retailer. The employee who had been absent on sick leave due to a stress related illness was deemed fit by his doctor to resume work. When he contacted his manager he was told not to return and that he would hear from the company’s solicitor. The employee heard nothing, and despite phone calls and several letters from his solicitor, there was no formal communication from the employer for a number of months. The company then referred the employee to be medically examined. The employee attended, however, he was never informed of the outcome of the examination and no other communication took place, despite further correspondence from his solicitor. The employee eventually resigned his position.
The Equality Officer concluded that the company imputed a disability to the employee as the company considered he was not fit to return to work due to a stress-related illness. The Equality Officer considered it reasonable for the employee to resign and awarded one year’s pay as compensation.
It is important for employers to remember that it is not for them to determine an employee’s fitness or otherwise to return to work and such a decision should always be deferred to a qualified medical practitioner. As with any employment related matter, it is important to have policies and procedures in place and to act in accordance with those policies. Absence policies should provide for appropriate absence management. Employees on sick leave should be assessed by the company’s Occupational Health Specialist and those on long term sick leave should be assessed on a regular and appropriate basis. Careful absence management will ensure that the company can be fully informed of any potential return to work date and reduce surprise returns by employees on long term sick leave.
About the author
Caoimhe joined Ronan Daly Jermyn’s Employment team in 2012. She provides advice on all areas of employment law. Caoimhe has a particular interest in the areas of health, education and the life sciences sector. On the non-contentious side, Caoimhe gives HR professionals practical and commercially focused advice on their day to day issues including grievance and disciplinary procedures and also has a specific responsibility within the team for pensions, having previously obtained a Law Society certificate in Pensions Law and Practice, and work permit applications and appeals for multinational clients. Caoimhe also has a particular interest in insolvency and M&A work.
Caoimhe is a committee member of the C.I.P.D. (West) branch. She also provides tailored training and legal updates to her clients. She has lectured on the Law Society Diploma in Employment Law and tutors employment law on the Law Society professional practice course. She also contributes to the IELJ and Legal Island.