by Breda O'Malley February-05-2018 in Employment Law

Underperformance, both at an individual and organisational level, can be driven by high levels of absence.  This article provides tips on how to avoid this issue in your organisation and guidance on how to manage this issue, where it arises.

Contracts and Policies

The organisation should ensure that employees’ contracts of employment provide for the following:

  • Obligation on employee to follow reasonable instructions;
  • Obligation on employee to perform the duties of the position;
  • Entitlement for employer to refer to company nominated doctor and to receive results of assessment at any time and whether or not the employee is, at the time of the referral, absent from work; and
  • Obligation on employee to comply with employer policies and rules. 

In addition, the contract of employment will contain a number of implied terms, such as the mutual obligation of trust and confidence.

The organisation should ensure that it has in place a suitable and clear non-contractual sickness absence policy, requiring medical certification after a specific period of absence, setting out clear procedures for notification of absence and providing that payment of sick pay is strictly subject to full compliance with the policy.

The organisation should ensure that it has in place a suitable non-contractual performance improvement policy under which performance issues can be addressed. This policy should be consistent with the employer’s disciplinary policy.

Organisational Culture

It is worth paying attention to the culture of the organisation. The organisation should:

  • Ensure that it communicates the fact that it is an equal opportunities workplace;
  • Encourage dialogue by holding return to work interviews following periods of absence; and
  • Encourage line managers to address performance issues as they arise.

Performance Management, Dismissal and Discrimination

The Unfair Dismissals Acts 1977 – 2015 (the “UD Acts”) provide that a dismissal can be fair if it resulted wholly or mainly from the competence of the employee for performing work of the kind which he was employed by the employer to do. This merely sets out one of the potentially fair reasons for termination. The UD Acts also provide that, in determining if a dismissal is unfair, regard may be had to the reasonableness or otherwise of the employer’s conduct. Accordingly, it is important to have regard to the principles outlined below when addressing performance issues.

An additional layer of complexity arises where the performance is linked to excessive absence. In such cases, there is a possibility that a disability is present. The Employment Equality Acts 1998 – 2015 (the “EEA”) prohibit direct and indirect discrimination and discriminatory dismissals on the disability ground. Employers have an obligation to provide reasonable accommodation to employees with disabilities unless the appropriate accommodations would impose a disproportionate burden on the employer. Section 16(1) of the EEA provides that an employer is not required to retain an employee who, even with the provision of reasonable accommodation, is not able to perform the essential function of their job. The extent of an employer’s obligation in relation to reasonable accommodation was considered in Nano Nagle School v Daly.

Identify the problem

In addressing an absence/performance issue, the employer should analyse the problem and consider the following:

  • What is the pattern of absence?
  • Are the absences medically certified or just falling under the threshold where certification is required?
  • What are the circumstances of the employee?
    • Probationer?
    • Longer service and change in behaviour?
    • Personal difficulties?

Following this analysis, and depending on the circumstances, it might be appropriate for the employer to engage with the employee under one of its policies or to consider a referral to company nominated doctor.

Disability and Reasonable Accommodation

Where an absence might be linked to a disability, the organisation should:

  • Ensure that it has engaged with the employee and, as appropriate, the organisation’s medical advisor as to the reasons for the absences; and
  • Ensure that it has considered reasonable accommodation and invited suggestions.

Addressing Performance –Principles

In implementing a performance improvement plan, an organisation is expected to act reasonably and fairly and with due regard to the dignity of the employee. The primary purpose of a performance improvement plan should be to improve performance. The imposition of disciplinary sanctions and termination of employment can only be secondary objectives.

In particular, an organisation should ensure that the employee is provided with a meaningful opportunity to improve by:

  • Ensuring that the standards/goals set for the employee are fair and have been communicated to the employee;
  • Informing the employee of the respects in which he/she is failing to do the job adequately;
  • Providing the employee with a cure period during which he/she is given an opportunity to improve;
  • Providing the employee with training/support/coaching;
  • Monitoring the employee’s performance against the reasonable expected standards/goals;
  • Reviewing the employee’s performance after the cure period;
  • Informing the employee of the any progress made and deficiencies remaining;
  • Providing further support and further cure periods, as appropriate.

The organisation should also ensure that the employee has been informed of the possibility of dismissal, in the event that improvements to the required standard are not achieved.

This article contains a general summary of a number of potentially complex legal issues and we recommend that specific legal advice is obtained where appropriate. For further information, please contact Breda O'Malley bomalley@hayes-solicitors.ie your usual contact at Hayes Solicitors.

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About the Author

Breda O'Malley
Breda O'Malley

Breda practises in both Employment and Commercial Law and is Partner and Head of the Employment Law team at Hayes solicitors. Breda has trained and qualified as a mediator with the UK based, internationally renowned Centre for Effective Dispute Resolution (CEDR). Breda practices as a mediator of commercial, employment, boardroom, charity trustee and shareholder disputes.