Sick leave is considered a protected period and generally an employer should not contact an employee during this time. However there may be circumstances where an employer may justifiably contact an employee during long term sick leave. This includes where the employee’s sick certificates have expired and no contact has been made regarding a return date, where the employer needs to establish a likely return to work date or where an employer may be concerned regarding the wellbeing of the employee. An employer may also make contact where there is a business case to do so, for example, where the business is being restructured and a redundancy or TUPE situation arises. An employer may also contact an employee on sick leave in order to complete a disciplinary or grievance process but only where the employee has been certified to participate in that process.
In a recent decision of the WRC in December 2016 (ADJ-00002652),
the adjudication officer held that the employer did not act unreasonably by contacting an employee on sick leave in circumstances where the employee had not submitted up-to-date sick certificates. The employee in this case resigned from her employment and claimed that she was constructively dismissed. In her claim, the employee submitted that she was bombarded with texts, calls and emails while on sick leave. The employer argued that there were long periods of leave where no certificates were provided and that it was entitled to contact the employee in those circumstances. The employer also submitted that the complainant stated that she was suicidal and argued that it was their duty to keep in touch with the employee and to contact her emergency contact when she didn’t respond. In its decision, the adjudicator stated that, normally, where an employee is on sick leave an employer should not contact the employee as the leave is protected leave. However, in the specific circumstances of the case, the adjudicator felt that an exception had to be made and that the employer was justified in its actions.
Ultimately, the matter should be handled sensitively and the appropriate level of contact should be decided on a case by case basis having consideration to the particular facts of each case. Consideration should be given as to the nature of the illness and whether the employee has indicated a preference to be kept up to date or whether he or she has made it clear that little or no contact should be made.
Employers are also advised to put in place a detailed sickness absence procedure which sets out the frequency in which sick certificates must be submitted and the fact that the employer may contact the employer once a sick certificate expires. The policy should also provide that employees may be required to attend the company doctor to determine their fitness to work and/or to establish a likely return to work date.
This article first appeared as part of Legal-Island’s employment law update service. Find out more: www.legal-island.ie