Protection from company disciplinary action when certified out sick

Autonomous

This came up at a recent discussion with a friend.
I reckon the company cannot take action against you if you medically unfit for work, he reckons they can...opinions?

antonymous

Autonomous wrote: »

This came up at a recent discussion with a friend.
I reckon the company cannot take action against you if you medically unfit for work, he reckons they can...opinions?

I'd love to believe they can't, but given the nature of most HR departments, they're sure to find a way.

duploelabs

Of course they can, just because you're sick doesn't give you carte blance, if it's disciplinary action pertaining to your missed days due to medical inability to work then not really, depends on your contract and discretion of your employer

Autonomous

Would HR not expose themselves to a possible case of constructive dismissal down the road?

Autonomous

"if it's disciplinary action pertaining to your missed days due to medical inability to work"

This is the type of scenario we were discussing.

duploelabs

Autonomous wrote: »

"if it's disciplinary action pertaining to your missed days due to medical inability to work"

This is the type of scenario we were discussing.

What kind of disciplinary action are we talking about? Your employer are under no obligation legally to pay you if you're out sick regardless of if you've a doctors cert or not

Autonomous

Like threatening to issue a verbal or written warning if you do not engage with them.

Mrs OBumble

Just a little mod-reminder that we cannot give legal advice here, and this conversation sounds like it needs some from a proper lawyer.



That said, OP, I'm sure that they can issue warnings in this way, because in most companies it's the disciplinary process that's used to manage un-going unfitness to work. Whether it's seen as constructive dismissal might depend on the reasonable-ness of your actions. For instance if you refuse their request to be assessed by a company nominated doctor, that would probably not be reasonable unless you were, say, unconscious in hospital.

christy02

Your contract of employment requires you to be at work as scheduled. If you are not in as scheduled then you are effectively breaking your contract and open to disciplinary actions.

Doctors cert or not.

We actively discipline people who go over a threshold of absence in terms of occurrences or percentage. Up to and including dismissal. Of course absence would be extremely bad to warrant dismissal but it has occurred.

I have also had someone dismissed after coming back from a long term illness and been unable to do the job as they could before leaving. This went court after the person filed for unfair dismissal and court ruled in favour of the company.

Nody

Autonomous wrote: »

Would HR not expose themselves to a possible case of constructive dismissal down the road?

Not really; they can simply state said employee is missing to many days, get them to visit a company doctor confirming he's not able to do his current role due to sickness and that's it let him go (i.e. redundancy) for failure to continue in the current position and no other suitable position available.

Doctors certs means nothing; you can be out sick for twenty years without a sick note or hand them in religiously but as a protection they mean nothing. It's simply a way for companies to make it more difficult to pull a quick sickie by requiring sick certs to be handed over.

Only to add:

If illness or injury is at issue, it is often assumed that you cannot be dismissed fairly while on certified sick leave from your work. However, this is not true. 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.

Taken from Citizeninformation.ie

Autonomous

christy02 wrote: »

Your contract of employment requires you to be at work as scheduled. If you are not in as scheduled then you are effectively breaking your contract and open to disciplinary actions.

Doctors cert or not.

We actively discipline people who go over a threshold of absence in terms of occurrences or percentage. Up to and including dismissal. Of course absence would be extremely bad to warrant dismissal but it has occurred.

I have also had someone dismissed after coming back from a long term illness and been unable to do the job as they could before leaving. This went court after the person filed for unfair dismissal and court ruled in favour of the company.

Interesting, did the company actively engage with the person while off sick and or when they returned to work- just out of interest, were they out sick because of something work or an outside work issue?

I suppose if you return to work, you should be 100% able for your job.

_Brian

Autonomous wrote: »

This came up at a recent discussion with a friend.
I reckon the company cannot take action against you if you medically unfit for work, he reckons they can...opinions?

Absolutely not true..
I was a supervisor in a large MN here and definitely being absent was being absent, if you're not at work you don't contribute to the success of the company and so this has consequences.
All other things being equal an employee with a period of certified sick leave would be rated below expectations and receive less pay advancement than a successfully rated performer. This wasn't always the case but I've definitely rated employees less than successful based solely on certified sick leave.
The HR line on this was; "the cert explains your absence, but it doesn't excuse it"

christy02

Autonomous wrote: »

Interesting, did the company actively engage with the person while off sick and or when they returned to workif it's disciplinary action pertaining to your missed days due to medical inability to work- just out of interest, were they out sick because of something work or an outside work issue?

I suppose if you return to work, you should be 100% able for your job.

It was non work related issue. There was no argument over the genuiness of the sickness. The person just couldn't carry out duties on return as she should and the company had nothing else available that was suitable.

The person in question had no computer or any other particular skills.

Autonomous

_Brian wrote: »

Absolutely not true..
I was a supervisor in a large MN here and definitely being absent was being absent, if you're not at work you don't contribute to the success of the company and so this has consequences.
All other things being equal an employee with a period of certified sick leave would be rated below expectations and receive less pay advancement than a successfully rated performer. This wasn't always the case but I've definitely rated employees less than successful based solely on certified sick leave.
The HR line on this was; "the cert explains your absence, but it doesn't excuse it"

Opinions on the same if the cert identified 'work related stress' and some was found to be true. Thanks.

Autonomous

christy02 wrote: »

It was non work related issue. There was no argument over the genuiness of the sickness. The person just couldn't carry out duties on return as she should and the company had nothing else available that was suitable.

The person in question had no computer or any other particular skills.

Seems justified to me. thanks.

_Brian

Autonomous wrote: »

Opinions on the same if the cert identified 'work related stress' and some was found to be true. Thanks.

The work related stress one is an interesting question, never came across it when I worked there so couldn't say, I'd find it hard to drop it on an already stressed employee... I'd say HR would be encouraging a hands off approach.

seamus

Autonomous wrote: »

Opinions on the same if the cert identified 'work related stress' and some was found to be true. Thanks.

Situation dependent really. If the company didn't make any attempt to try and remediate the primary causes of stress, then you could argue against them. E.g. if their boss was a known asshole and no attempt made to work on the relationship or move the employee to a different area.

But in many cases it could be easily spun around to show that the person was simply incapable of handling the normal stresses of the job as endured by colleagues.
For example, if it was a nurse out on work-related stress leave, the company could argue that she's simply not capable of handling the job like her colleagues do and dismiss her for being unable to fulfill her contract.