Incapacity Dismissals

With the recent Government announcement that legislation is going to introduce the right for an employee to accrue annual leave while on sick leave, the necessity for employers to manage such employees is essential. This is easier said than done. An employer who is considering dismissing an employee who is on sick leave must be mindful of a potential claim for discriminatory dismissal, unfair dismissal and/or breach of contract.

An employer should first be able to justify why the business now requires to make a decision in relation to the termination of employment of an employee on sick leave. Regardless of this justification or reason, the employer should then follow a thorough procedure before it can fairly dismiss an employee on the ground of incapacity. An employer should:

1. ensure that it is in possession of all material facts concerning the employee’s condition;
2. give fair notice to the employee that the question of his/her dismissal for incapacity is being considered;
3. allow the employee to put forward his/her input before the employer makes a decision.

An employer should therefore seek a medical reports from an independently appointed doctor to ascertain the employee’s incapacity, the prognosis and likely duration of the illness. The employer’s sick leave policy should specify the right of the employer to get an employee medically assessed by a doctor appointed by the employer at the expense of the employer and that the employee consents to the medical report from such assessment being furnished to his/her employer. A copy of the medical report should be furnished to the employee to give the employee and his/her medical advisors an opportunity to consider it. In the event that the employer receives a contradictory medical report, it can either furnish it to the doctor who did the medical examination on behalf of the employer for his/her view or seek a further medical opinion from a different doctor which may involve a specialist. An employer should not take on the role of a medical expert in respect of assessing the illness.

The employer should as its appointed doctor to not only address the employee’s incapacity and expected return to work date but to include in his/her report what steps or measures are required to accommodate the employee’s return to work. The employer must then assess such advised/suggested measures and ascertain whether or not they are feasible and that they don’t amount to a disproportionate financial burden on the employer. The Employment Equality Acts requires employers to take “effective and practical measures” where needed so long as it does not impose a disproportionate burden on the employer’s financial resources. Examples of such measures include:
- adaption of the premises and equipment;
- patterns of working time, distribution of tasks; or
- the provision of training and integration of resources.
It does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself/herself.

The employee should be informed in writing at an early stage that dismissal on the basis of his/her incapacity is being considered. Once all the medical information has been gathered, the employee should be requested to attend a meeting with the employer together with a witness/representative and should be informed in advance that the purpose of the meeting is to discuss whether or not his/her employment will be terminated on the basis of the employee’s incapacity. The employee should be asked for his/her input in relation to the medical reports and measures to enable his/her return to work. The employer should take time to consider the employee’s input and if appropriate issue the employee with a written notice of dismissal in accordance with the employee’s contract of employment but ensure to provide for a right of appeal against the decision of dismissal.

It should be noted that if an employer provides its employees with the benefit of Permanent Health Insurance, this policy needs to be considered before a decision is made to dismiss. If the employee would be entitled to payment under the Permanent Health Insurance Scheme but for the dismissal. The dismissal could lead to a breach of contract claim before the High Court or Circuit Court which would be costly to defend.

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