Absenteeism is a huge issue for Irish businesses, which can have an extremely adverse impact on the functioning of an organisation, together with an impact on an organisation’s general health and well-being.  In this month’s How Do I Handle It article, Michelle Ryan Associate Solicitor in Ronan Daly Jermyn Solicitors discusses what an employer can do in a situation where they have been provided with conflicting medical evidence from an Employee’s GP and an Company Doctor.

I have an employee on medically certified sick leave.  Her doctor has certified her as unfit to return to work, however the Company doctor has advised she is fit to return to work.  I would like to progress this matter.  How do I handle it?

The Legal Position

Absenteeism is a huge issue for Irish businesses, which can have an extremely adverse impact on the functioning of an organisation, together with an impact on an organisation’s general health and well-being, which in turn has serious implications from an engagement perspective and creates issues regarding attracting talent and employee retention.

Absence management is complex and is dependent on a mix of approaches to support those who are sick and to deter the small amount minority whose absence is not health-related.  Best practice management requires organisations to consider their overall approach and to commit to pro-actively managing absences.

Very clearly, it is important to have clear policies and procedures in place governing absence management and ensure that your line managers are trained in those policies so that they can then be proactive in enforcing and applying the policy.

In dealing with absences, communication is key, and maintaining contact with the employee is crucial in this regard.  This is continually reinforced in the case law in this area and the importance of obtaining medical advice cannot be under stated.

The case law has consistently confirmed that an employer has an obligation to appraise themselves of the full facts before making any decision in terms of managing absences

In the case of a Teacher v a Vocational Committee, DEC-E2013-001, an employee who suffered from a depressive illness was placed on sick leave by his employers until he had engaged in specialist treatment.

In this case there was a conflict between the company doctor’s medical opinion which deemed the employee unfit to work and the employee’s medical report which stated he was fit to return. In that case the equality officer found that where doctor’s opinions are at odds, there is a definite requirement to seek further clarity.

It was noted that:

“I am satisfied that the respondent has been presented with information which would suggest that the complainant may return to work, which was contrary to the existing medical evidence at that time…..I am satisfied that as the essence of the respondent’s medical opinion report is at odds with that of the complainant’s medical opinion, there is then a definite requirement on the respondent to seek further clarity.  It is clear that there would be an obligation upon the respondent in such circumstances to fully establish the factual position.”

Next steps

In order to progress, as there is a conflict between medical evidence there is a requirement to seek further clarity by way of third opinion.  Failure to do so may render any subsequent process to be procedurally unfair.

This document is for general information purposes only and does not constitute legal or other professional advice. Specific legal advice should be sought on any particular matter.

For more information on the content of this update contact:

Michelle Ryan, Senior Associate, michelle.ryan@rdj.ie

Michelle's colleague Jennifer Cashman will be providing a 'Review of the Year' in her session at our Annual Review of Employment Law.