I am frequently meeting clients who are unsure how to deal with employees whose attendance record is poor due to illness. Actually one of the commonest forms of dismissal is that relating to an employee’s attendance record.
Unlike most forms of dismissal, this area does not involve any fault on the part of the employee. In scrutinising such a dismissal a court or tribunal must balance the employee’s welfare against the demands of the business.
Absence dismissal related to illness cannot be dealt with solely under unfair dismissal legislation but must also take account of the Employment Equality Acts 1998-2004 which confers substantial protection on employees suffering from “disability”, a term that is widely defined and cover most if not all, forms of illness which might give, or do, give rise to substantial absence from work.
Poor attendance records by employees can cause many problems for employers, particularly for smaller businesses. From an employer’s perspective, you need to ensure that you have complied with legislation and be in a position to demonstrate that you have followed “fair procedures”. An employee must be afforded reasonable opportunities to improve their attendance record but if it is clear that it is beyond their capacity to improve their attendance record, an employer may be entitled to inform that employee that they may have to consider letting him/her go.
If an employee’s illness absence is related to one continuing problem or underlying condition, in reviewing the position, an employer would normally be expected to obtain medical advice to find out:-
a) Whether or not the problem will persist; and
b) What is the likelihood of the employee being able to attend on a more regular basis in the future and being able to perform her work for which he/she is employed to do?
An employer should consider what, if any, special treatment or facilities may be available by which the employee can become fully capable to carry out his or her work.
In the event a decision is taken to terminate that employee’s employment, then the onus of proof is on the employer to show that he has taken all reasonable steps and followed fair procedures. You will have to be able to show that:-
a) The incapacity was the reason for the dismissal;
b) The reason was substantial;
c) The employee received fair notice that the question of her dismissal for incapacity was being considered; and
d) The employee was afforded an opportunity of being heard.
Ultimately, the employer must be able to show that the employee’s dismissal was reasonable in all circumstances and necessary for good commercial reasons.
If you require further information or have any queries please contact Catriona[at]brophysolicitors.ie
Catriona Sharkey
Unlike most forms of dismissal, this area does not involve any fault on the part of the employee. In scrutinising such a dismissal a court or tribunal must balance the employee’s welfare against the demands of the business.
Absence dismissal related to illness cannot be dealt with solely under unfair dismissal legislation but must also take account of the Employment Equality Acts 1998-2004 which confers substantial protection on employees suffering from “disability”, a term that is widely defined and cover most if not all, forms of illness which might give, or do, give rise to substantial absence from work.
Poor attendance records by employees can cause many problems for employers, particularly for smaller businesses. From an employer’s perspective, you need to ensure that you have complied with legislation and be in a position to demonstrate that you have followed “fair procedures”. An employee must be afforded reasonable opportunities to improve their attendance record but if it is clear that it is beyond their capacity to improve their attendance record, an employer may be entitled to inform that employee that they may have to consider letting him/her go.
If an employee’s illness absence is related to one continuing problem or underlying condition, in reviewing the position, an employer would normally be expected to obtain medical advice to find out:-
a) Whether or not the problem will persist; and
b) What is the likelihood of the employee being able to attend on a more regular basis in the future and being able to perform her work for which he/she is employed to do?
An employer should consider what, if any, special treatment or facilities may be available by which the employee can become fully capable to carry out his or her work.
In the event a decision is taken to terminate that employee’s employment, then the onus of proof is on the employer to show that he has taken all reasonable steps and followed fair procedures. You will have to be able to show that:-
a) The incapacity was the reason for the dismissal;
b) The reason was substantial;
c) The employee received fair notice that the question of her dismissal for incapacity was being considered; and
d) The employee was afforded an opportunity of being heard.
Ultimately, the employer must be able to show that the employee’s dismissal was reasonable in all circumstances and necessary for good commercial reasons.
If you require further information or have any queries please contact Catriona[at]brophysolicitors.ie
Catriona Sharkey
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