A recent case in Ireland - wherein the Labour Court overturned a €17,000 award by the Workplace Relations Commission (WRC) to a former employee of Dunnes Stores who was dismissed after a period of absence of three years – has prompted the need for a fresh look at the complicated legislation surrounding absenteeism.
Here at the HR Department, we would like to unpack some of the reasons why the Labour Court overturned the WRC award in this case. Hopefully this will provide some valuable tips and ensure employers and employees know where they stand when it comes to absenteeism.
So, here are three of the most important points to be taken from the Court ruling:
1. Employers are not obliged to ‘officially’ find out if someone is unable to work.
The court in this case ruled that if an employee is not fit to perform the duties they have been hired to perform, this can give rise to dismissal. While this may seem evident, what was important to note was that the court also ruled that it was not the role of the employer to establish if the employee could or couldn’t work.
Instead, as was the case here, the employer can simply believe the worker when they say they are unable to work. In other words, an employer is not required to send an employee to an independent medical assessment if they believe the reason for incapacity is genuine.
2. Employees who are ill should, where possible, give an indication of when they may be back to work - otherwise they may face dismissal.
Should an employee be unable to work, it is imperative they try to indicate to the employer when they may be able to return to work. It is an employee’s duty to say when they might be able to work again and if they fail to do so, employers may have grounds to dismiss them. In this case, the court argued that the worker, despite having plenty of opportunities to do so, had not made it clear when she would be able to return to work, thus justifying her dismissal.
Clearly an employer can’t be expected to keep a position vacant indefinitely. Therefore, employees need to be diligent when it comes to keeping an employer up to date with their ongoing situation regarding their absence. Equally, returning to work after a long period of absence can be a tough and daunting task. Employers should consider ways in which they can help employees who are returning to work in order to make the process as smooth as possible. The key to avoiding problems here is both clarity and open lines of communication between employer and employee.
Finally, it is also worth noting that, under the Employment Equality Act, employers are obliged to make reasonable accommodations for staff with disabilities, and employees on long-term absenteeism could fall into this category.
3. Employers shouldn’t include maternity leave as a period of absence.
In this case, Dunnes Stores included the claimant’s maternity leave in its calculation of her three year period of absence – something which was criticised by the court. The critical point here, therefore, is that maternity leave, even during a prolonged period of absence, should not be considered ‘absenteeism.’ Also, with regard to maternity leave, employees should remember to apply in writing to your employer for maternity leave and give your employee 4 weeks notice before you wish to return to work. Clearly this needs to be a two-way street – employees need to inform their employers of maternity leave, and, in turn, employers must be astute enough not to include this as a regular period of absence.
Absenteeism is a complex issue that can have the potential to lead to costly litigation if it is not dealt with effectively. This case goes to show how an employee’s continued absence, without specifying when they may be back to work, has the potential to lead to dismissal. The important thing to remember is that the more in touch an employer is with their employee (and vice-versa) the less likelihood there is of complications when it comes to absenteeism. It is beneficial for both employees and employers to be well versed in this area, not only to avoid complications, but also to harness a company culture and workplace environment that is as smooth, efficient and understanding as possible.
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