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Are you sick of sick leave?

In this current economic climate, it is imperative that all aspects of the business are functioning efficiently and effectively. Costs need to be monitored and kept to a minimum. One such area is sick leave.

Small businesses in Ireland loose on average


€793 million per annum through absenteeism. The national average for absenteeism is 8 working days.

Before anything can be done to reduce absence levels it helps to know what they are. The Bradford Factor measures both the number of sick days and the number of absences.

The Bradford Factor

The formula is:
S x S x D = ‘Bradford Factor’

(S is the number of spells of absence in the last 52 weeks and D is the number of days’ absence in the last 52 weeks). As it concentrates on instances more than actual days absence, the Bradford Factor allows a business to have a table of sickness. Those without satisfactory explanations for their regular short-term absences can then be dealt with formally through disciplinary procedures. As ever, it is essential that consistency is applied when dealing with sickness absence.

Consequently it is vital organisations have a formal strategy in place to manage sick leave. In general there is no existing employment law in Ireland on this issue. It is at the discretion of the employer to decide their own policy on sick pay and sick leave, which should be included in the employee’s contract or terms of employment, which under Section 3 of the Terms of Employment Act 1994 and 2001 the employer is obliged to provide an within two months of the commencement of employment.

Awareness For Employees

The first area to consider is the reporting of sickness. Everyone needs to know precisely what they are required to do if they are too ill to come in to work. Employees need to be aware that they should phone their manager. If practical, notification by text message or voicemail should not be accepted.

In addition, employees need to know that they must phone at the earliest possible opportunity to advise why they are unable to make it to work and when they expect to return. It is not unreasonable to ask these questions and it may mean they are less likely to take that occasional day off.

Contracts of employment should state that employees are required to provide a doctors certificate for periods of absence exceeding three days. Employees can be asked to complete an absence statement, which details when they were off and why. This can then be signed off and put on their employment file.

In some circumstances, where an employee has consistently been absent from work (or if through illness is no longer capable of continuing work), employment may be terminated. Employees are protected in certain circumstances in this instance through the Unfair Dismissals legislation.

misconceptions

There is a misconception that an employee cannot be dismissed fairly while on certified sick leave from your work. It is difficult to lay down hard and fast rules to apply to these cases as each will be treated on its own merits. Issues such as length of service, previous record and the importance of the job will vary and will have to be taken into account. These types of claim are often divided into short-term and long-term absences.

There is no set period of absence by which it can be said that a dismissal will or will not be considered reasonable. Obviously, the longer the absence, the easier it is for your employer to show that it is causing genuine difficulty in terms of the organisation of the workplace. In terms of medical evidence, the Company may requested that the employee attend a medical practitioner of their choice in order to gain an objective view of the condition and ascertain if it will be possible for the employee to return to work in the foreseeable future. If there is a conflict of medical evidence as to the possible return date, the Company will be expected to get a second opinion before taking the decision to dismiss.

Annual leave entitlements

Annual leave entitlements, are calculated depending on total hours worked. As a result, Employees on long term sick leave, are not automatically entitled to accrue annual leave and will only retain their full annual leave entitlement if they have worked more than 1365 hours in the annual leave year. However, the European Court of Justice has recently ruled that workers on sick leave retain the right to take annual holidays or be paid compensation in lieu.

The court was giving judgment in two joined cases, Stringer against British Revenue and Customs, and Schultz Hoff against Deutsche Rentenversicherung Bund.

The House of Lords and the Dusseldorf Landesarbeitsgericht asked the ECJ to interpret the right to paid annual leave under the EU’s working time directive. In its judgment, the court said the right to sick leave and the conditions for exercising that right were not governed by EU law. Member states were entitled to specify the circumstances in which workers exercised the right to annual leave, but could not make that right subject to preconditions.

The court said that, the entitlement to paid annual leave did not prevent employers authorising paid annual leave while a worker was on sick leave. If such leave was not permitted, the worker must be allowed to take leave at another time. The court said that workers on sick leave were entitled to annual holidays even if they did not work during the leave year. A member state could only scrap the right to paid annual leave at the end of a leave year (or carry-over period) if the worker had actually had an opportunity to exercise his right to holidays. The court’s ruling may impact on all EU member states, including Ireland but you should discuss your situation with the 24 Hour Advice Line before making any such changes.

To summarise, in order to monitor and control absenteeism, the following points should be borne in mind:

  • know absenteeism levels within the organisation;
  • have a detailed sickness absent procedure;
  • employers need to be tactful, sensitive and use commonsense;
  • take a serious view if sickness/injury leave is not genuine and;
  • if necessary, ask permission to contact the employees doctor or have the employees.

Should you wish to discuss individual circumstances, you should contact our 24 Hour Advice Line for further assistance or visit us at: Peninsula Ireland

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