Sickness and absence from work is an area many employers and indeed employees have to deal with on an ongoing basis. This has been made all the more challenging in light of the Covid-19 pandemic.
The case of Roisin Breslin v Marks and Spencer Limited ADJ 00032380 is an example of a case where the employer had to manage a situation where the employee had a pattern of absences from work. The case notes that the employee had been absent from work on a number of occasions (approximately 70) since October 2018. The employer had stopped short on several occasions in dismissing the employee and had according to the Workplace Relations Commission demonstrated “remarkable patience and forebearance” in dealing with the employee, noting also that the Complainant was a good employee when she was in work. The employer ultimately dismissed the complainant when she was absent again through suspected tonsilitis and there had been no formal diagnosis of Covid-19.
The Adjudicator noted that “the complainant must have been aware that she could not expect indefinite leniency on the part of her employer. In a busy employment environment such as the one run by the respondent I would have to accept that habitual absenteeism makes it difficult for management and colleagues alike. I appreciate that there was a pattern of informing the Employer of absenteeism as they arose – by both phone and text message. However, doing the right thing by informing the employer that you wont’ be coming in does not negate the difficulty it creates in the workplace where others have to shoulder the workload”.
The Adjudicator further noted that “..I would have to say that the employer herein demonstrated remarkable patience and forbearance when it came to this particular complainant and I acknowledge that this is probably because when she was actually on the floor she was a good employee. However, the terms of the disciplinary process are crystal clear and at a certain point the final decision has to be made. The complainant had had the benefit of a number of steps not being proceeded with. I note that the complainant had previously had a sanction of a two week suspension imposed on her. This sanction saw no overall improvement. So it was, that there was really was only one option left to the respondent at this time. I am satisfied that the complainant was not unfairly dismissed but was dismissed in accordance with the disciplining process. In this regard I am accepting that the rates of absenteeism were inordinate and unacceptable. It is also noted that the company policy clearly provides that even certified absences do not exempt an individual from being put on disciplinary notice”.
It was held that the complainant employee had not been unfairly dismissed.
Case Learning Point
An employer must be careful in managing any sick related absences and that proper and fair procedure is managed at all times including sending an employee to a company doctor. An employer is not obliged to tolerate an employee’s sick leave indefinitely but equally must tread very carefully in managing any absence or they could face a claim for unfair dismissal or claims for discrimination on the grounds of disability.
