A guide to handling employee sickness and absence

Questions we answer in this guide:

• What’s an absence management policy and why do you need one?
• What to do when an employee is absent from work due to long-term sickness
• What other reasons are there for employees to be absent from work?

Employees will need to take days off now and then for health reasons.

That’s generally unavoidable.

But you’ll want to keep an eye on staff absences, to ensure it isn’t causing difficulties for your workforce or the productivity of your business as a whole.

When they’re sick, employees may be able to rely on automatic legal rights (called statutory rights), to which they’re entitled just because they are an employee.

On 20 July 2022, the Sick Leave Act became law.

This now gives employees a statutory right to sick pay.

To find out more check out our guide on Statutory Sick Pay

The best resource

Your absence management policy should underpin anything you do to handle staff going off sick.

All businesses should have one, as soon as they start to employ people.

If you don’t have one already, you can use our template to create one that suits your business requirements.

Absence management policy

The template will steer you through the decisions you’ll need to make and any options you need to consider.

Our policy has been drafted like a handbook to managing employee sickness absences.

You should keep it in your overarching staff handbook, together with all the other key policies that cover the operational and legal needs and duties of your businesses.

It is only applicable to employees.

Don’t apply it to contractors or any other worker or supplier of services to your business.

If you do, you risk them being treated as an employee (by Revenue and the Courts/Workplace Relations Commission), which would award them all the additional rights that employees have over other workers and contractors – and trigger a bit of a hornet’s nest in relation to your, and their, tax liabilities.

What does an absence management policy cover?

Your rules, basically.

The practical, logistical steps for what happens and when, that everyone in your business can follow.

Yes, there is a legal flavour to the document.

But like almost all the documents in our business and employment policy suite, it has a huge practical emphasis.

You’ll see it’s not just about unexpected sicknesses, but also how employees should handle the practicalities around routine medical check-ups or appointments that affect their working hours.

In detail, your policy should cover:

1. Mechanics of reporting sickness:

• how the employee must report in their sickness
• to whom they report, by what time, and what happens if they cannot reach that person

2. Your employees’ duty to provide a doctors certificate to certify their sickness

3. Longer term sickness arrangements: what you and they must do if they are going to be off-sick for a longer period

4. Returning to work: the steps that you follow when an employee returns to work after a long period of sickness absence

5. Sick pay: details about their entitlement to pay when they’re off sick

6. Contingencies and exit measures: your formal procedures for handling long term sickness absence, or frequent absences that an employee attributes to repeated bouts of illness

This should include (as our template does) your right to dismiss the employee on the grounds of long-term sickness.

7. Appeal process: how the employee can appeal an ultimate decision to dismiss them due to long term sickness.

(If you’ve proof or reasonable grounds for believing that sickness is not genuine, you may need to consider taking disciplinary action.)

In all likelihood, you’ll need to handle those facts under your disciplinary policy instead.

Other reasons for employee absences

While the majority of our template policy covers sickness absence, it also includes options for you to set out your position on absences from work for other reasons, such as jury service and family-related absences.

Does the policy have contractual status?

This will depend on what you say in your employment contract(s) with your employees.

We recommend that you do not give it contractual status in any employment contract that you put in place.

Instead, we advocate:

• referring to all your policy documentation in the employment contract (and making clear that it is non-contractual)
• making clear that the employee is expected to comply with the policy; and
• confirming that you have the right to update or revise this and any other policy, in your discretion and when you want to.

This is a highly practical approach.

It means that you can update your polices as and when you need, without needing permission from your employees to do so, as is required if it is a contract.

To find out more about this check out our guide on varying contracts of employment

Policies change relatively frequently – whether you’re adjusting them for new legal developments, or accommodating changed business circumstances, e.g. revenue growth that might justify a more generous approach to your business’ pay or benefits position, so you need to have the flexibility to make changes as and when required.

The Plugged template includes the statutory requirements, as well as optional elements for you to consider.

The best approach

While in a lot of cases, employee absence will be legitimate and completely unavoidable, there are a few ways you can make it less likely in your business:

1. Check that all employees know of, and can easily refer to, your absence management policy

This includes knowing how:

• they should report their absence
• it will be recorded and dealt with
• much pay they’ll receive.

2. Review an employee’s sickness status regularly

Ensure you’re both up to date on the situation.

You don’t want to pester them if they’re feeling really poorly, but you do have a right to know how they’re doing and whether there are any facts or details that you need to be aware of.

It’s also fine to ask them when they think they will be better enough to return to work (assuming that their absence is not due to a serious illness or injury, where the assessment of that likelihood may not be immediately possible).

Your employee also needs to know and agree with you when they’ll be expected to be back at work.

Your absence management policy will remind them of the procedures they need to follow to stay in touch with you, including their duty to complete the relevant forms or paperwork relating to their absence.

3. Give your employees appropriate support that could help their comfort and wellbeing at work.

4. Ensure relevant health and safety training has taken place for all employees and again, that they have access to the guidance and information they need.

Check out our health and safety hub for all things health and safety

What to do when an employee calls in sick

When an employee is absent from work due to short-term sickness

Persistent or frequent short-term absences, even though they may be for genuine medical reasons, are particularly disruptive for an employer.

Therefore, short term absences need to be properly managed.

Any absence due to illness should require an employee to provide you with a sick certificate from their treating doctor.

If their absence continues, they should be required to submit a sick certificate at weekly intervals or at intervals that you agree.

You may need to consider your long-term sickness procedures if it looks as though they’ll be absent for significantly longer than 7 days.

When an employee is absent from work due to long-term sickness

If other staff or your business is at a significant disadvantage due to the absence, consider hiring a temporary replacement to cover their role until they’re back.

This comes at a cost and it’s not easy for small businesses to balance these costs, but you may not have a choice, especially in the early stages of a long-term sickness absence situation where dismissal is typically not a legally advisable option.

Keeping in touch

While it’s sensible that you keep the employee updated on relevant workplace matters while they’re away, it’s also important to give them the time and space needed to recover without the pressure of too much work information to process.

If you handle the communications with a sick employee badly, they may be able to build a claim against you, including for discrimination or even constructive or unfair dismissal.

If you’re not sure how to handle the process, or you want to take a more assertive stance than your policy document suggests is advisable, take advice in advance of committing your intentions to action.

How can you be sure the employee is ready to return?

The Plugged template gives you the option to ask the employee to attend a return-to-work interview after they’ve been off work due to sickness or injury.

During that meeting, you can:

• recap why the employee needed to take sick leave
• check that they are now fit to return to work, and
• consider any advice that the employee may have received from their doctor.

What if you’re unsure about the employee’s readiness to come back?

Sometimes, an employee might feel they’re ready to come back to work, but you may have reasonable concerns and might not agree.

Here, it may be appropriate to ask the employee to allow their doctor to advise you of when a return to work is probable.

You might even want to obtain your own medical evidence.

If that’s the case, you need to ensure that you have the contractual right to obtain it.

Check the terms of the relevant employment contract.

Your absence management policy should also explain to the employee that they may be asked to co-operate by undertaking this medical assessment before you can agree to them returning to work.

The benefit of this is that a qualified medical practitioner can advise not just about whether the employee is sufficiently recovered to resume their duties, but also whether any reasonable adjustments will need to be made to the employee’s working environment or working practices/hours beforehand.

Medical reports and confidentiality

Employees may be anxious about you requesting a medical assessment.

You’ll see that our template explains that all reports that you obtain will remain confidential.

You must ensure that they are indeed securely held and only shared with those who strictly need to know their contents to help your business manage this situation lawfully, fairly and efficiently.

You should ask for your employee’s consent to have full access to medical reports that you obtain, and for you to be able to discuss their contents with the relevant medical practitioner.

The employee does not have to consent to the assessment; but you can make clear that if they don’t consent, you’re entitled to make decisions based on existing medical and other information.

Payments and benefits that an absent employee is entitled to

Since July 2022 employees now have a right to statutory sick pay (SSP) while on sick leave.

To qualify for SSP an employee must:

• Be an employee
• Have worked with you for at least 13 continuous weeks before they are sick
• Be certified by a GP as unable to work.

Check out our guide on statutory sick pay to find out more.

Statutory sick pay aside, you can decide your own policy on sick leave and whether or not you pay sick leave.

As with most statutory rights, you’re able to provide more through your own contractual agreement if you decide to.

Just ensure that you’re treating other employees as fairly.

Annual leave entitlement continues to accrue during an employee’s entire absence, and if they miss out on using holidays due to sickness, they’re entitled to carry that annual leave over for up to 15 months after the end of the year it was earned, as long as they have a medical certificate for those days.

If the employee leaves their job within these 15 months, they are entitled to be paid for these days.

They may also request to take annual leave while they are absent, as it may work out better financially for them to do so (i.e. they get paid holiday at their usual rate of salary).

However, employers aren’t entitled to instruct employees to use annual leave in place of sick leave, though you may suggest it.

Company Sick Pay

Some businesses choose to pay their employee’s sick pay.

Your employment contract should specify situations where the employee will not be eligible for this pay e.g. where they have not worked a minimum number of weeks for you.

Alternatively, you can state that an employee must have passed their probation period with you in order to qualify.

Alternative arrangements

If you have an alternative arrangement in place, you’ll need to describe them in a similar way to the options given above.

When an employee returns to work

After a period of absence, it’s important to hold a return-to-work interview to welcome them back, make sure they’re ok to pick up where they left off, and fill them in on anything that’s changed since they’ve been away.

The employee may have handed you a note from their GP that states they’re ‘may be fit for some work’. If this is the case, use the interview to agree to their new working arrangement, finding out exactly what they are capable to do and what, if anything, you can do to help.

The return-to-work interview is also an opportunity to discuss the root of the cause of absence (if appropriate) and try to find ways to ensure the employee is protected as possible against the cause in future – for example, giving them a bigger computer monitor to reduce the cause of eyestrain and headaches, or trying out a flexible working arrangement to improve their work-life balance.

If the employee is repeatedly absent

While return-to-work interviews are designed to comfortably bring the employee back into the workforce and prevent further absences, there may be times that, despite your best efforts, the employee still feels unable to work.

If this happens frequently, you’re entitled to ask for doctor’s notes or hold meetings to again discuss the reasons for their absence and ways their attendance can be improved.

If the employee doesn’t offer a reasonable explanation for their absences, you can begin formal action in the way set out in your disciplinary and even dismissal procedures.

(See further below for more information on dismissal.)

Formal procedure for long term sickness absence

Your absence management policy should guide you on this.

If you’re using our template policy, you’ll see it sets out the following recommended approach for you to use:

Invitation to a formal meeting

You’ll need to contact the employee, inviting them to attend this meeting and giving them the details of where, when and why it has been arranged.

If the employee cannot attend on the proposed date, you should reschedule it, to accommodate a mutually acceptable alternative date.

During the meeting, you should:

• recap why the employee has been off work
• discuss how long they expect to remain off work
• explore whether this is likely to be a recurring situation, (meaning that the employee is likely to need more time off for the same reason in the near future)
• review the medical evidence and explore whether further reports are needed
• consider with the employee whether there is anything that you can reasonably do to support the employee’s progression back to health and/or to make it easier for them to return to work
• if appropriate suggest that the employee take part in a return-to-work (or phased return) scheme
• depending on the circumstances, set the employee targets for improving attendance if they’re persistently absent
• depending on the circumstances, warn the employee that they may face dismissal if their attendance does not improve.
• confirm to the employee that they’re entitled to invite someone else to accompany them to this and any subsequent meetings.

After this meeting

If the employee isn’t able to return to work, or if they don’t meet any targets and deadlines that it may have been appropriate to set for their improved attendance, you should arrange a further meeting.

The objective at this further meeting will be to assess what has happened during the period since the first formal meeting and to consider with the employee whether the position is capable of improvement.

At the conclusion of this second meeting and during your deliberations immediately after it, if it’s obvious to you that the employee’s not likely to be able to come back to work, or that considering all factors and experience to date, their attendance is unlikely to improve, you may decide to start a dismissal process.

While you are implementing all of the above steps, you need to be aware that where employees have long term, underlying medical conditions that have a substantial adverse effect on their normal day to day activities, they may be classed as having a “disability” under Equality law.

This means they will have greater protections legally, for example there is a duty on the employer not to discriminate and to make reasonable adjustments to enable the employee to do their job.

It is important you take advice from our legal experts in this sort of case before taking any action against the employee, as there may be extra steps you need to take.

Timing of your decision

Whatever you decide is appropriate, you should set this out in writing to the employee, ideally within 2 weeks of the second meeting taking place, though you might need to take longer in particular circumstances, for example, where the injury or illness is especially severe, and you may need to consult extensively with medical and/or other experts.

Dismissal

Before you start your dismissal process, you should take legal advice.

Situations like these can be controversial and employees in this position may be stressed, anxious and resentful of what they may consider to be an unfeeling or unreasonable stance on your part.

You should also consider carefully whether you might be able to offer the employee a role elsewhere in your business (if any suitable roles may be available).

It’s advisable to ask the employee to contribute suggestions as well.

And you must demonstrate that you have considered them properly and respectfully.

Reserve disciplinary procedures for bad faith absences

If the employee has been acting in good faith, it may be far better to terminate their contract according to the standard notice provisions set out in their contract – or to reach an agreed settlement for their departure.

Dismissal under your disciplinary process should be reserved for situations where it transpires that the employee is not off work for a genuine medical reason and/or they have not been able to provide a reasonable explanation about they have been/remain absent.

Falsely claiming sick pay is dishonest and you’ll probably want to notify the employee in these circumstances that they may face dismissal for misconduct or gross misconduct.

Appeals against dismissal and final decision

Employees have a right to appeal a dismissal decision.

They can’t appeal a standard properly notice given to them according to the terms of your contract with them.

Your policy should set a deadline date for this appeal to be made. (Our template suggests not later than one week of you giving the employee your decision).

Employee appeals should:

• be written
• addressed to the relevant person identified as the correct recipient in your decision letter
• clearly set out why the employee is appealing
• provide any new information or evidence on which the employee intends to rely

Appeal hearings should:

• be held usually within two weeks of the employee requesting the appeal
• be lead, ideally, by someone suitably senior who has not been involved in the matter so far
• allow the employee to be accompanied by a colleague (or trade union rep – if applicable)

Decisions on appeal should:

• be written
• typically follow within 2 weeks of the appeal hearing
• be the final stage in any internal process.

If the employee remains unhappy, they may need to consider bringing a formal claim against your business, involving the Workplace Relations Commission (WRC).

Is there a problem with your work environment or other staff?

Consistent absences due to sickness may be a symptom of a wider problem.

Make sure you carefully, promptly and sympathetically explore what may be causing the absence.

Is there something about the work that the employee does that is contributing to their symptoms?

Could a problem with a colleague, customer or supplier, for example, be causing, or exacerbating the employee’s health?

Be careful how you investigate this.

Are you reading the signs? Your staff are calling in sick a lot…

Emergency absences

Family emergencies involving someone dependent on the employee, may mean that they need to take reasonable time off work to deal with that emergency.

What’s classed as ‘an emergency’?

The situation must be one which makes it necessary for the employee to deal with something immediately.

This generally means that the employee may need somewhere between a few hours or, at most, a couple of days to handle the situation.

You’re entitled to treat anything longer as ‘non-emergency’ time off.

Care over the longer term is not classified as an emergency, for example.

Who is a ‘dependent’?

Our policy defines ‘dependents’ as spouses, civil partner, children (including adopted children), or a parent.

Also included are other people who live in the employee’s household or anyone else who relies on them – for example, an elderly family member.

Process for taking this time off

Your employees should be directed to follow the same procedure as for sickness leave and to contact their manager as soon as they know they need to take the time off.

You’re entitled to require them to act reasonably about the time they take off.

If they expect they’ll be absent for more than 1 day, have a discussion with them to decide a way that they will keep you updated.

In situations such as this, they may be entitled to time off for dependants.

What’s the position with pay?

This type of leave is treated as unpaid leave.

If you decide to pay the employee during this time off, you should make clear that it’s at your discretion and will not set any precedent for that employee or for any other employee.

This emergency leave does not cover general home issues, like wanting time off to deal with a problem with your boiler or a flood.

These other types of time off for family-related matters are covered under our separate Maternity and Family-Friendly policy.

Other absences

Other family-related absences

These other types of time off for family-related matters should be covered under separate policies like a maternity policy for example.

These polices should from part of your Employee Handbook

Jury service

If an employee is called for jury service, your policy should oblige them to tell you as soon as possible, so you can make plans to cover the absence.

An employer is obliged to let an employee attend for jury duty.

Time spent on jury service should be treated as if the employee were actually employed.

In other words, all employees are entitled to be paid while they are away from work.

There should be no loss of any other employment rights either.

You can find out more about this here.

Other public duties

There may be other public duties that, occasionally employees may need to carry out and that affect their normal working hours.

You’re not obliged to accommodate these absences or to pay the employee during this time.

If the employee wishes to take them as paid leave, they should make the usual arrangements according to your holiday policy.

Trade Union duties

If one of your employees is elected as a trade union official, they are legally entitled to reasonable time off to fulfil their trade union obligations.

Where this happens, you should pay them their full basic rate for all related absences during working hours.

You’re not obliged to pay them for any duties carried out outside working hours.