EAT case highlighting employer’s obligations in absence management cases

 A recent determination from the Employment Appeals Tribunal (the EAT) provides a useful reminder of an employer's obligations when managing employees who are absent on sick leave1.

In this case the respondent was a car parts distributor and the claimant was a store operative. A difficulty arose in the functioning of the business as a result of their business's courier partner closing down suddenly. The respondent employer was under pressure to put in place alternative arrangements in order to meet customer demands. A verbal altercation took place between the employer and the claimant. The claimant left the premises and also alleged that he was told that if he was to return to the premises he was not to be allowed on to the premises. He then submitted a sick certificate. The claimant subsequently alleged that he submitted a certificate indicating that he was fit to return to work. The respondent employer disputed receipt of this certificate.

The EAT held that the claimant had been unfairly dismissed and awarded the claimant €42,640 in compensation. The EAT held that even if no fitness to return to work certificate was received by the respondent, it was incumbent on the employer to contact the employee to clarify the situation (particularly in the circumstances of this case where the relationship was fraught and it had stated to the claimant he was not to return to work).

The case, whilst turning on its own particular facts, also demonstrates the extent of the obligation on the employer when notified of an employee being on sick leave. This can extend to arranging their own occupational health examination and if this determines that the employee is fit to return to work, then an employer should make contact with the employee within a reasonable period to try and agree a return to work date.

Ideally the above should be set out in an employer's sickness/absence management policy so both sides are clear as to what procedures are to be followed. Underpinning the policy is the importance of communication between both sides. This is particularly so for the employer, as failure to engage with the employee to clarify return to work dates, can cost the employer as evidenced above.

For more information please contact Sinead Grace, sgrace@algoodbody.com or your usual contact in A&L Goodbody Solicitors.

1 John Cunningham v Premco Distributors (UD 1666/2013)

Date published: 30 June 2015