Sick Leave & Dismissal

Absences from work due to being medically unfit that result in dismissal can be a difficult tight rope for employers to traverse.

The employer must be able to objectively justify the decision to end the employee’s employment. Employees must be afforded with fair procedures and natural justice.  

What happens when a company H.R. person decides to dismiss an employee during the sick leave period ?, for example.  

Many employees believe they cannot be dismissed while on sick leave, but this is not correct.

The legislation states that if an employee is not capable of fulfilling the role, the dismissal is not unfair.

If, for example, an accident happened at work, and the employee is injured and out of work for a while, then the employer should engage an external occupational doctor to make an assessment on whether the person is medically fit to reattend work or not. Obviously the employee will have attended with their own G.P. and possibly specialist for their injury, who will have their own view on whether the person is medically fit to return to work or not.  

Sometimes there can be a difference in medical opinions between a persons own doctor and the external company engaged doctor, but this topic will be the subject of another post.   

What can happen when an employee is out on sick leave for a period of time, is that the decision maker in the company takes the view that the person does not want to come back, and has resigned due to their non-attendance when they are on sick leave. This is incorrect and exposes employers to possible liability if they dismiss an employee for this reason.    

Employers should not communicate with staff that if they don’t come to work due to this type of issue, they will be considered by the employer to have engaged in a self-dismissal.

The only people who can actually terminate the employment contract is A. The Employer or B. The Employee by notifying the employer of their decision to leave and furnishing to them their notice.

The Unfair Dismissals Act at S.6 is clear, which states: 

The dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. 

Therefore, there must by law be substantial reasons to justify any dismissal. If an employer has an issue with an absence and has concluded the person just does not want to come back, they must follow their own procedures before taking the ultimate sanction decision ie to dismiss the employee. Employees have procedural safeguards available to them.  

On the other hand, if an employee has fallen ill, and this is continual, the employer is entitled to state in defence of any unfair dismissal claim, that no unfair dismissal arose as the employee was incapable of fulfilling the role to due to ill-health and there is an implied term of contract that the employee must be able to complete the role they were hired for.

Frequently Asked Questions

What constitutes gross misconduct Ireland ?

We answer this in this post.

What are examples of gross misconduct ?

See this post for guidance.

Do you always get sacked for gross misconduct ?

This is dependant on the individual employer. If the employer is aggrieved at conduct of the the employee, the employee still has a right to a fair investigation of the matter to put in his / her defence with any relevant witnesses etc.

Do I have to attend a disciplinary hearing for gross misconduct ?

You should attend such a meeting. The sanction applied by the employer to the conduct complained of has to be proportionate, and the employee should be afforded a right of appeal.

Does a disciplinary mean dismissal ?

No, dismissal is the last and ultimate sanction an employer can choose. There are vary other lessor severe sanctions available to the employer and the employer must be proportionate in the sanction decision.

Can you appeal a decision for gross misconduct ?

It is important to assess if the proper procedures were followed prior to the decision to dismiss. Was an investigation carried out ? for example. Was the person allowed to prepare for the investigation, defend themselves, have a witness as to fact etc. and if a decision was made a disciplinary hearing to dismiss, was there a right of appeal afforded to the person, for example.

How to you prove gross misconduct ?

If there is cctv or witnesses as to the fact, witness statements may be sought and availed of. What is the evidence of each party relevant to the facts will likely be assessed.

What do you get for unfair dismissal ?

This is answered above.

What is the Unfair Dismissals Act

The primary Act is the 1977 Act, but it has been amended many times thereafter.

Here is the revised edition to November 2019.

How much compensation do you get for unfair dismissal in Ireland ?

This is answered above. The max is up to 104 weeks ie salary remuneration if successful.

How to you prove unfair dismissal ?

The burden of proof in unfair dismissal cases is on the employer to disprove it, if it has been established the person is an employee, was dismissed, and has the requisite service period completed.

Can an employer dismiss you without warning ?

There is strong employment law legal protection in Ireland, and it would be imprudent and contrary to fair procedures should this arise.

What can you do if you were fired unfairly ?

You may have a right to legal recourse in terms of activating a legal action under the Unfair Dismissals Acts, or other legislation.

Disclaimer

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. Legal advice should be sought from a solicitor prior to relying on anything in this article.

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.