09 Feb How long is an employer expected to keep a job open if employee absent due to illness?

In a recent case(UD 1758/2012)the EAT determined that an employer had acted reasonably after it dismissed an employee who had been absent for over two years.

In this case, the employee suffered an injury at work in May 2009 and after initially being certified unfit for three days remained absent from work until her dismissal in August 2011. The employer contacted the employee in August 2009 and a number of times in early 2011 about whether she was was fit to return and informed her that her position could not remain open indefinitely.  A doctors report was sourced in April 2011 and it indicated that she would not be able to return to work within six months or perhaps indefinitely.

After being issued with 6 weeks notice of termination of employment in June 2011, the employee asked her manager to be patient and to reverse the decision to dismiss her.  The employee said she disagreed with some of the Doctor’s report and and asked her employer to send her to an orthopaedic surgeon for another opinion. This was not done by the employer.

The EAT outlined that the dismissal was fair as there was no reasonable proposition being put forward that the employee could return to work within a reasonable time-frame and that the steps taken by the employer to establish the true medical position were reasonable and a further review by an orthopaedic surgeon would not have changed anything.  The EAT also commented that the employee had been made aware that her continued employment was at risk if she was not medically fit to resume her duties.

Here are some useful guidelines for employers in dealing with long term absences:

• Keep in communication with employee during period of absence;
• Ensure medical certificates are submitted throughout the period of absence;
• Obtain an up to date and comprehensive medical report about fitness to resume duties;
• Inform employee about the potential impact on continued employment if not medically fit and that job cannot be held open indefinitely;
• Consider alternatives in light of medical evidence such as different or part time duties;
• Make sure a number of meetings are held prior to dismissal and offer representation at meetings.