All too often, sick leave is one of those grey Human Resources topics that many Irish businesses prefer to ignore. However, having a clear policy and sticking to it, is important. If you don’t already have a policy in place, now is the time to do it. The possible financial and non-financial losses to your business caused by employee absence can be wide and varied and include:
Generally, the most effective ways of managing absence are inexpensive and easy to administer. In this article the following questions will be answered:
1. Are there any circumstances where an employee has a right to sick pay?
2. Should a sick leave policy be written down?
3. What should the policy contain?
1. Are there any circumstances where an employee has a right to sick pay?
In general there is no statutory right to sick pay in Ireland. Some employees are covered by registered agreements outlined by a Joint Labour Committee (JLC) that may have a right to sick pay for example the Hairdressing JLC issued in 2002 includes a sick pay scheme. Whilst these JLC’s were found to be unenforceable by the High Court it could be that an employee whose contract was based on the rights set out under the JLC will contractually be entitled to those rights.
2. Should a sick leave policy be written down?
Some employers do not have a formal sick pay policy but routinely pay employees who are out sick. This system works well except where one or more employees take advantage of the employer’s generosity, giving rise to difficulties with both the employer and other employees. If the policy is informal it could in fact become a contractual right of the employee on the basis of ‘custom and practice’ and an employer could find himself or herself bound to paying sick leave without any right to withdraw it unless it is clearly stated in a policy.
It is always preferable, and good human resource practice, for an employer to have the policy, whether they pay sick pay or not, written down and it should be implemented across the board.
3. What should the policy contain?
It is important that an employee is fully aware of the manner in which the employer deals with absence and the procedures for reporting absence. This may be stated in the employment contract, in the employee handbook or in a separate practice policy document. The absence policy should include the following:
A Statement on the Employer's Approach to Absence
The policy should state that good attendance is expected; the effect of absenteeism and that absence is measured and tracked by the company or practice. Moreover, the policy should specify that the employer will take any measures it deems appropriate to address unacceptable absenteeism, up to and including amendments to existing benefits.
Employee Notification Requirements
The policy should clearly outline for the employee (1) Who they should contact if they are unable to attend for work and (2) When they should contact, e.g. must they contact in advance of normal working time to allow the employer time to make alternative arrangements or within a number of hours of normal starting time?
The expected frequency of employee contact with the employer during continued periods of absence should also be clearly outlined.
Provision of Medical Certificates
The policy should state when the employee is required to provide a medical certificate, what must be stated on that certificate and the frequency with which those certificates must be submitted. It is important to note that the provision of a medical certificate does not excuse absence; it merely provides an explanation or reason for it.
Payment While Absent
The Terms of Employment Information Act, 1994-2001 places a legal obligation on the employer to advise employees of the terms and conditions (if any) relating to incapacity for work due to sickness or injury. Thus the policy must outline whether or not the employee will be paid during the absence and the conditions relating to payment. For example, payment of sick pay should be conditional on compliance with notification requirements, provision of certificates, submission of state disability cheque or acceptable levels of absence. It is important that the employer clearly specify the grounds on which an employee may be disqualified from payment.
Medical Examinations
The policy should state that the employer reserves the right to refer the employee to an employer-nominated doctor at any time, at the absolute discretion of the employer and that it is a condition of the employee's employment that they attend the doctor and consent to the employer receiving a copy of the doctor's medical report.
In conclusion, whilst most employers are happy to pay an employee for the time they are off sick there may come a time where this is not possible due to frequent or prolonged absences. Employers should have a clear policy as to how much and for how long sick pay will be paid to avoid
The contents of this article are necessarily expressed in broad terms and limited to general information rather than detailed analyses or legal advice. Specialist professional advice should always be obtained to address legal and other issues arising in specific contexts.
- Payment of employee while absent, dependent on your policy.
- Payment of staff, perhaps at overtime rate, to cover absent employee.
- Lost income due to cancellation or disruption to appointments.
- Increased workloads on other staff.
- Reduced quality of service to your clients.
Generally, the most effective ways of managing absence are inexpensive and easy to administer. In this article the following questions will be answered:
1. Are there any circumstances where an employee has a right to sick pay?
2. Should a sick leave policy be written down?
3. What should the policy contain?
1. Are there any circumstances where an employee has a right to sick pay?
In general there is no statutory right to sick pay in Ireland. Some employees are covered by registered agreements outlined by a Joint Labour Committee (JLC) that may have a right to sick pay for example the Hairdressing JLC issued in 2002 includes a sick pay scheme. Whilst these JLC’s were found to be unenforceable by the High Court it could be that an employee whose contract was based on the rights set out under the JLC will contractually be entitled to those rights.
2. Should a sick leave policy be written down?
Some employers do not have a formal sick pay policy but routinely pay employees who are out sick. This system works well except where one or more employees take advantage of the employer’s generosity, giving rise to difficulties with both the employer and other employees. If the policy is informal it could in fact become a contractual right of the employee on the basis of ‘custom and practice’ and an employer could find himself or herself bound to paying sick leave without any right to withdraw it unless it is clearly stated in a policy.
It is always preferable, and good human resource practice, for an employer to have the policy, whether they pay sick pay or not, written down and it should be implemented across the board.
3. What should the policy contain?
It is important that an employee is fully aware of the manner in which the employer deals with absence and the procedures for reporting absence. This may be stated in the employment contract, in the employee handbook or in a separate practice policy document. The absence policy should include the following:
A Statement on the Employer's Approach to Absence
The policy should state that good attendance is expected; the effect of absenteeism and that absence is measured and tracked by the company or practice. Moreover, the policy should specify that the employer will take any measures it deems appropriate to address unacceptable absenteeism, up to and including amendments to existing benefits.
Employee Notification Requirements
The policy should clearly outline for the employee (1) Who they should contact if they are unable to attend for work and (2) When they should contact, e.g. must they contact in advance of normal working time to allow the employer time to make alternative arrangements or within a number of hours of normal starting time?
The expected frequency of employee contact with the employer during continued periods of absence should also be clearly outlined.
Provision of Medical Certificates
The policy should state when the employee is required to provide a medical certificate, what must be stated on that certificate and the frequency with which those certificates must be submitted. It is important to note that the provision of a medical certificate does not excuse absence; it merely provides an explanation or reason for it.
Payment While Absent
The Terms of Employment Information Act, 1994-2001 places a legal obligation on the employer to advise employees of the terms and conditions (if any) relating to incapacity for work due to sickness or injury. Thus the policy must outline whether or not the employee will be paid during the absence and the conditions relating to payment. For example, payment of sick pay should be conditional on compliance with notification requirements, provision of certificates, submission of state disability cheque or acceptable levels of absence. It is important that the employer clearly specify the grounds on which an employee may be disqualified from payment.
Medical Examinations
The policy should state that the employer reserves the right to refer the employee to an employer-nominated doctor at any time, at the absolute discretion of the employer and that it is a condition of the employee's employment that they attend the doctor and consent to the employer receiving a copy of the doctor's medical report.
In conclusion, whilst most employers are happy to pay an employee for the time they are off sick there may come a time where this is not possible due to frequent or prolonged absences. Employers should have a clear policy as to how much and for how long sick pay will be paid to avoid
The contents of this article are necessarily expressed in broad terms and limited to general information rather than detailed analyses or legal advice. Specialist professional advice should always be obtained to address legal and other issues arising in specific contexts.
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