Dismissal while on Sick Leave

Sick leave, long-term sick leave and employment dismissal is an issue that keeps coming up and will continue to do so.

The law in terms of Unfair Dismissal is set out in section 6 of the Unfair Dismissals Act 1977(as amended) which states that the dismissal of an employee will be considered an unfair dismissal unless there were substantial reasons for the dismissal.

Dismissal while on Sick Leave

So what are the ‘substantial reasons’ in this context ie ill-health and sick leave.

In section 6 (4) of the Unfair Dismissals Act 1977 it states that the dismissal of an employee will not be considered an unfair dismissal if the dismissal reason is due to the capability / competence of the employee for performing work of the kind which he/she was employed by the employer to do.

So, if a employee on sick leave has their employment terminated and takes a case for unfair dismissal, the employer has a defence by explaining to the case officer that in their view, the employee due to their ill-health was not capable of completing the role.

It is not for the case adjudicator in the Workplace Relations Commission to put themselves in the shoes of the employer and assess it from their perspective, nor is it the duty of the case officer to establish whether or not the employee was in fact capable or incapable for the role.

What the adjudicator wants to know and establish is if the employer had a honestly held belief that the employee could not complete the role due to health, and so are incapable of fulfilling the role as specified in the employment contract.

The law regarding dismissal on the grounds of ill-health is set out in Bolger V Showerings Ireland Limited wherein it was stated :

For the employer to show the dismissal was fair when it considered the employee incapable, they must show that :

  1. Ill health must be the reason for the dismissal
  2. This must be the substantial reason
  3. The employee must be notified that the dismissal for incapacity is being considered and
  4. The employee must be given a chance to be heard

If such a case arises, it is likely the employer will contend that there is an implied term in the employment contract that the employee must be fit to perform their duties, and if they do not have the capacity, then this can give rise to a dismissal.

Reasonableness Test

In such cases the case officer will be tasked to assess if the employer acted reasonably in the circumstances.

The question in the case officers mind will be ‘’would a reasonable employer have dismissed the employee in the circumstances’’.

The case officer will consider if there is any possibility of the employee returning to work or not.

Frequently Asked Questions
Can you dismiss someone on sick leave ?

It is a defence for an employer in an unfair dismissal case to rely upon S.6 of the primary Act which states that no unfair dismissal arises if the employee is not capable of fulfilling their duties. So, the employer can seek to rely on this provision, if an unfair dismissal action arises, but the decision to dismiss must be directly connected with the persons ill-health and inability to then complete their job role.

Plus there must be a substantial reason regarding the decision to dismiss.

How long can you get full pay while on sick leave ?

To answer this one should review their Contract of Employment, and if there is no clause in the contract providing for sick leave payment, is there any custom and practice in the particular place of employment to pay staff while on sick leave ?. If there is no provision for this relief in an employment contract, for example, an employer may not be obligated to pay salary while the employee is on such leave.

What is incapacity due to ill health ?

The question for the employer and employee is – is the employee able to fulfil the role they were employed to do ? or are the health circumstances of the person sufficiently serious to prevent them completing their role with the employer.

How do you know if you are being terminated?

An employer should write to the employee in letter form stating the intention of the employer to bring the employment to an end and set out the reasons for this.

If the employer carried out appropriate procedures such as an investigation or a disciplinary process, the paperwork in relation to same should be provided to the employee. If the employees employment is ended due to a performance issue, for example, the intention of the employer should be clearly explained by the employer and the reasons put to the employee.

Can you be fired for being sick in Ireland?

This is answered above.

Can you be dismissed for ill health ?

This is answered above.

Disclaimer – Dismissal while on Sick Leave

Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute.

Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.

Dismissal while on Sick Leave

Employment Law Articles

Roger Cleary

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