Stay ahead of the curve with our exclusive Q&A series, brought to you by leading law firm, A&L Goodbody, LLP, designed to answer your most pressing legal questions. These expert insights provide clear guidance to ensure your HR practices remain compliant and protect your organisation.  

In this Q&A, we outline some strategies for managing employee absence in the workplace and some common pitfalls which employers can avoid by having a robust sick leave policy in place and keeping lines of communication open with employees. 

Are employees legally entitled to paid sick leave in Ireland?

Yes, employees in Ireland have a right to statutory sick pay (SSP) under the Sick Leave Act 2022 (the Act).
Employees who have completed 13 weeks’ continuous service are currently entitled to SSP of up to five days per year (an increase from three days in 2023 when SSP was first introduced) on the condition that they provide their employer with a medical certificate stating that they are unfit to work for the period in question. SSP is paid by the employer at a rate of 70% of an employee’s pay subject to a daily maximum of €110.
SSP was scheduled to increase to seven days in January 2025. However, the government has since postponed any future increases to SSP while a review of the scheme is ongoing.
 

How can employers effectively manage sick leave in the workplace? 

Regular communication is the most important part of managing sick leave effectively, both during the period of absence (by checking in with the employee at appropriate intervals) and when the employee returns to work. In particular, employers are encouraged to conduct return-to-work interviews when employees return from a period of sick leave to determine whether the employee is fit to return to work and whether they require any supports. It is also important to consider if there are other work-related issues that could be the cause of the period of sick leave. Detailed records of absences should also be kept, which will help employers to spot any emerging patterns or trends. Employers should take action when they have determined that there is a problem regarding a specific employee or a cohort of employees. 
As outlined below, diligent employers will put in place a clear and comprehensive sick leave policy, outlining how the SSP regime operates and/or the eligibility requirements for any company sick pay which the company provides where applicable. This is the cornerstone of managing employee sick leave in any workplace.
 

What provisions should the company sick leave policy contain?

First and foremost, if the employer offers company sick pay, where appropriate, the policy should clearly state that it is purely discretionary in nature, and subject to the employee complying with the sick leave policy at all times. The policy should also include clear notification and medical certification requirements and may include a notification form which employees are required to complete on their return to work and/or at such times as requested by the employer. The process for return-to-work interviews should be outlined, and the policy should also explain that abuse of the policy may lead to disciplinary action and/or cessation of company sick pay where applicable.

At what stage should an employer require medical certification?

Under the Act, an employee must provide a medical certificate from the first day of absence and many employers choose to incorporate this timeline in their sick leave policy, in particular where an employer has concerns about managing employee absence (see further below).  However, some employers may decide to require a medical certificate from the third day of absence. They may consider that requiring a medical certificate from the first day of absence is overly burdensome for employees, considering the difficulty of getting a doctor’s appointment at short notice and the cost to the employee involved in attending an appointment if they are only sick for one day.
Mere confirmation of a medical appointment should not be accepted, a medical certificate signed by a registered medical practitioner stating that the employee named in the certificate is unable to work should always be obtained.

How can an employer deter employees from abusing the company sick leave policy?

It can be very difficult to monitor employee sickness management and prevent abuse of the system. In general, it is recommended that employers continue to implement and strictly monitor the notification procedures and medical certification requirements outlined in the sick leave policy. There may be a temptation to reduce the number of paid company sick days in an attempt to deter abuse of the policy. However, there can often be another solution which does not penalise the majority of employees who take sick leave for genuine illnesses. For example, employers can ensure that managers have up-to-date training on the implementation of the policy, and continue to enforce certification requirements and cease company sick pay where these requirements are not being complied with. Moreover, employers may consider offering company sick pay only when employees have passed their probationary period or have a minimum length of service with the company. Lastly, employers may consider introducing stricter medical certification requirements, such as requiring medical certification on Mondays and/or on public holidays to deter employees from taking extra “long weekends” at the company’s expense. 

Can an employer discipline an employee where they are suspected of “abusing” the company’s sick leave policy?

As outlined above, it is recommended that the sick leave policy includes a provision for the employer to take disciplinary action under the company’s disciplinary procedure where an employee is suspected of abusing the policy. If it is suspected that an employee is in fact abusing the policy (e.g. if an employee frequently calls in sick on a Monday, or on a day following a public holiday, or if for some other reason there is cause to suspect that they are not genuinely sick when taking sick leave), the employer could deal with this behaviour under their disciplinary policy if (a) the employer has legitimate reasons to believe the policy is being abused, and (b) having followed the correct HR process. However, it can be difficult to prove abuse of a sick leave policy in practice, particularly where an employee submits valid medical certificates and appointment confirmations are provided.

What steps should an employer take where an employee is on long-term sick leave or has frequent sickness related absences?

It can be problematic under Irish employment law to invoke a disciplinary procedure where an employee has multiple sickness related absences or is on long-term sick leave. Recent case law demonstrates that such action may result in a claim of discrimination before the Workplace Relations Commission (the WRC) under the Employment Equality Acts 1998-2015 (the EEA). An employer can lawfully dismiss an employee on the grounds of medical incapacity, however, a delicate process must be followed, involving multiple occupational health referrals and consultations with the employee. As part of this process, the employer should consider whether the employee’s illness falls within the meaning of ‘disability’ under the EEA and if so, what reasonable accommodation it could make to enable the employee to return to work. 

What are the key takeaways for employers?

Employers should be familiar with their sick leave policy and ensure that employees comply with it; remember, a failure to adhere to the company’s procedures may be a disciplinary matter. When an employee is on a period of sick leave, the employer should stay in regular contact with them and keep the lines of communication open regarding the potential return-to-work date. Employers should obtain medical advice for an employee on long-term sick leave, and when approaching the stage of dismissal on the ground of incapacity. Finally, employers should act reasonably at all times and never rush the process, either when considering disciplinary action for breaches of the sick leave policy, or when managing an employee on long-term sick leave.