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[h=1]Dismissal While on Long Term Sick - Recent EAT Case[/h][FONT=open_sanslight]Galway Airport v Norman Clune (UD 420/2008)[/FONT]
Facts
The appellant (the ‘employer') appealed the decision of the rights commissioner. The claimant (the ‘employee') was injured in a car accident in April 2006, and was hospitalised for three days. The employee went on sick leave and submitted weekly sick certificates to the employer. The employee attended with the employer's doctor recommending that the employee's condition be reviewed in three months time.
Before the expiry of the recommended three months, the employer wrote to the employee terminating his employment and enclosing his P45. The employee did not receive any warnings that his position was under review and no disciplinary process was entered in to.
The employer explained that the employee would have been re-hired if the employee had been certified medically fit to return to work.
DETERMINATION
The Employment Appeals Tribunal (‘EAT'), which was chaired by Mr. Hurley on 10 December 2008, found that the employer did not exercise proper procedures in dismissing the employee. The Tribunal felt the employee should have been informed of the reasons for his dismissal and the possibility of using the internal appeals process.
The employee submitted weekly sick certificates and underwent medical examinations at the employer's request. The medical reports indicated that the employee was recovering and the employee should have been allowed back to work once medically fit. However, the Tribunal took into consideration that the employee was not medically fit and that he was not available to return to work until late 2008. In addition, the employee did not suffer significant financial loss. The Tribunal awarded €12,000 in compensation to the employee on the grounds that the employee did not follow fair procedures.
LEGAL REVIEW
Although the employee in this case was on long term sick leave, it is unclear why the employer took the decision to dismiss when he did. The employee had already been absent for over 10 months, was not receiving sick pay and the employer did not have to pay the employee's salary. Accordingly, there was no real expense for this employer.
However, long term absences can create operational difficulties for an employer. From a management and legal perspective, all employers need to carefully manage employees on long term sick leave. It is clear from the following EAT cases, that the Tribunal will be sympathetic towards employees who are dismissed on grounds involving ill health.
In the EAT case of Reardon v St Vincent's Hospital UD 74/79 the Tribunal found that employers must inform a person on sick leave that their absence is a cause of concern and may lead to his continued employment being reviewed. The Tribunal also found that the employee should have been warned there was a possibility of his employment being terminated. Likewise in McLoughlin v Celmac (Ireland) Ltd UD 799/84, the EAT found a dismissal to be unfair where the employer did not get an up-to-date medical opinion with regard to the employee's possible future availability for work.
The employer should also consider whether there are any other alternative positions which might enable a quicker return to work. An employer should only terminate the employment of an employee where it can be shown through independent medical evidence that the employee is unfit to return to work and the position is unlikely to change in the medium to long term. The employee should be consulted, told the possible outcome of the decision making process and be given an opportunity to contest the medical findings.
Finally, where an employee is receiving payment under a long term illness plan or income continuance scheme, it can be difficult to dismiss an employee. The courts in the UK have held that there is an obligation on an employer not to dismiss the employee on grounds of incapacity, and that position may very well be adopted by the courts or tribunals here.
Thank you to Anna Broderick of Eversheds for the main content of this article. To receive articles like this one regularly by email why not join our Premium Email Service? For details click here
Dismissal While on Long Term Sick - Recent EAT Case
Facts
The appellant (the ‘employer') appealed the decision of the rights commissioner. The claimant (the ‘employee') was injured in a car accident in April 2006, and was hospitalised for three days. The employee went on sick leave and submitted weekly sick certificates to the employer. The employee attended with the employer's doctor recommending that the employee's condition be reviewed in three months time.
Before the expiry of the recommended three months, the employer wrote to the employee terminating his employment and enclosing his P45. The employee did not receive any warnings that his position was under review and no disciplinary process was entered in to.
The employer explained that the employee would have been re-hired if the employee had been certified medically fit to return to work.
DETERMINATION
The Employment Appeals Tribunal (‘EAT'), which was chaired by Mr. Hurley on 10 December 2008, found that the employer did not exercise proper procedures in dismissing the employee. The Tribunal felt the employee should have been informed of the reasons for his dismissal and the possibility of using the internal appeals process.
The employee submitted weekly sick certificates and underwent medical examinations at the employer's request. The medical reports indicated that the employee was recovering and the employee should have been allowed back to work once medically fit. However, the Tribunal took into consideration that the employee was not medically fit and that he was not available to return to work until late 2008. In addition, the employee did not suffer significant financial loss. The Tribunal awarded €12,000 in compensation to the employee on the grounds that the employee did not follow fair procedures.
LEGAL REVIEW
Although the employee in this case was on long term sick leave, it is unclear why the employer took the decision to dismiss when he did. The employee had already been absent for over 10 months, was not receiving sick pay and the employer did not have to pay the employee's salary. Accordingly, there was no real expense for this employer.
However, long term absences can create operational difficulties for an employer. From a management and legal perspective, all employers need to carefully manage employees on long term sick leave. It is clear from the following EAT cases, that the Tribunal will be sympathetic towards employees who are dismissed on grounds involving ill health.
In the EAT case of Reardon v St Vincent's Hospital UD 74/79 the Tribunal found that employers must inform a person on sick leave that their absence is a cause of concern and may lead to his continued employment being reviewed. The Tribunal also found that the employee should have been warned there was a possibility of his employment being terminated. Likewise in McLoughlin v Celmac (Ireland) Ltd UD 799/84, the EAT found a dismissal to be unfair where the employer did not get an up-to-date medical opinion with regard to the employee's possible future availability for work.
The employer should also consider whether there are any other alternative positions which might enable a quicker return to work. An employer should only terminate the employment of an employee where it can be shown through independent medical evidence that the employee is unfit to return to work and the position is unlikely to change in the medium to long term. The employee should be consulted, told the possible outcome of the decision making process and be given an opportunity to contest the medical findings.
Finally, where an employee is receiving payment under a long term illness plan or income continuance scheme, it can be difficult to dismiss an employee. The courts in the UK have held that there is an obligation on an employer not to dismiss the employee on grounds of incapacity, and that position may very well be adopted by the courts or tribunals here.
Thank you to Anna Broderick of Eversheds for the main content of this article. To receive articles like this one regularly by email why not join our Premium Email Service? For details click here
Dismissal While on Long Term Sick - Recent EAT Case
