CURRENT LEGAL ARTICLES

Managing long-term sick leave can be one of the more difficult employment issues facing an employer. A prolonged absence can affect staffing, workloads and business continuity, particularly for small and medium-sized businesses.

For employers in Cork and across Munster, the challenge is often finding a balance between supporting an employee who is absent due to illness and ensuring that the business can continue to operate effectively.

Irish employment law does not provide a simple rule that an employee can be dismissed after a particular period of sickness absence. Instead, employers need to consider the employee’s capability, medical evidence, possible disability-related obligations, reasonable accommodation and fair procedures before making significant decisions.

This is particularly important where an employer is considering a capability dismissal or is concerned about the potential for an unfair dismissal or disability discrimination claim.

Why Long-Term Sick Leave Can Create Difficulties for Employers

Employee sickness absence is a normal part of working life, but a prolonged absence can create practical difficulties.

For example, imagine a Cork SME where a key employee has been absent for 12 months following a serious injury. The business has redistributed the employee’s workload and hired temporary support. The employee now expects to return, but their medical information indicates that they may initially be unable to perform all of their normal duties.

This situation is very different from one where medical evidence indicates that an employee is unlikely to return to work in the foreseeable future.

The employer cannot simply treat both situations in the same way. The relevant facts, medical evidence, the nature of the role and possible adjustments all need to be considered.

The Central Statistics Office has highlighted the scale of workplace absence in Ireland. In Q2 2024, an estimated 211,800 people in employment were absent from work during the reference week, representing 7.7% of those in employment. The CSO notes that these absences can include reasons such as holidays, sick leave and maternity leave.

For employers, the issue is therefore not whether absence happens, but how longer-term absence is managed fairly and lawfully.

What Does Irish Employment Law Say About Long-Term Sick Leave?

There is no automatic rule under Irish employment law that allows an employer to dismiss an employee simply because they have been absent for a certain number of months.

The Workplace Relations Commission recognises capability as one of the potentially fair grounds for dismissal. This can include situations where an employee is unable to perform the work for which they were employed.

However, the existence of a potentially fair reason does not mean that every dismissal following long-term sick leave will be lawful.

Employers should consider:

• The employee’s medical condition and available medical evidence.
• The likely timeframe for a return to work.
• Whether the employee can perform their existing role.
• Whether reasonable accommodation may be appropriate.
• Whether alternative duties or working arrangements are possible.
• The operational impact of the continued absence.
• The employee’s contractual and workplace rights.
• Whether the employee may have a disability protected by equality legislation.
• Whether a fair and appropriate procedure has been followed.

A decision should therefore be based on the circumstances rather than an arbitrary absence threshold.

Sick Leave and Statutory Entitlements in Ireland

Employers should also distinguish between statutory sick leave and longer-term sickness absence.

The Sick Leave Act 2022 provides a statutory sick pay scheme for employees who meet the relevant conditions. The Workplace Relations Commission currently states that the statutory entitlement is five days of paid sick leave, subject to the statutory requirements, including 13 weeks’ continuous service and a medical certificate from a registered medical practitioner.

Long-term absence can continue beyond statutory sick leave and may be governed by an employer’s contractual sick pay arrangements, workplace policies or other applicable provisions.

Employers should therefore review the employee’s contract and relevant workplace policies rather than assuming that statutory sick leave represents the entire legal position.

When Can Capability Become a Dismissal Issue?

One of the most difficult questions for employers is whether an employee’s ongoing inability to work can ultimately justify dismissal.

Capability is recognised as a potentially fair ground for dismissal under the Unfair Dismissals legislation. However, an employer should not treat a capability dismissal as an automatic consequence of long-term illness.

Consider two hypothetical examples.

Example 1: An employee has been absent for six months following surgery. Medical evidence suggests that they are expected to return to work within the next few months, potentially with temporary adjustments.

Example 2: An employee has been absent for a much longer period, and current medical evidence indicates that there is no realistic prospect of returning to their role within a foreseeable timeframe.

The employer’s position may be very different in each case.

The important issue is not simply the number of days or months the employee has been absent. Employers should consider the evidence, the prospects of returning to work and whether the employee can reasonably perform the role, with appropriate adjustments where applicable.

Disability Discrimination and Reasonable Accommodation

Long-term sickness absence can sometimes involve disability, making the Employment Equality Acts particularly relevant.

Disability is one of the protected grounds under Irish equality legislation. Where an employee has a disability, an employer may have obligations to consider reasonable accommodation.

Reasonable accommodation can involve appropriate measures designed to enable a person with a disability to access, participate in or advance in employment, subject to the applicable legal requirements.

Depending on the circumstances, possible measures could include:

• Adjusting working hours.
• Modifying working arrangements.
• Adapting workplace equipment.
• Changing certain duties.
• Considering a phased return.
• Exploring other practical adjustments.

The appropriate response will depend on the individual circumstances.

For Cork employers, this is an important area to consider before moving towards a capability or dismissal process. A decision made without properly considering disability-related obligations may create additional legal risk.

What Should Employers Do Before Considering Dismissal?

Employers dealing with long-term sickness absence should approach the matter systematically.

1. Maintain Appropriate Communication

Reasonable communication can help both the employer and employee understand the likely position.

Communication should be respectful and appropriate to the circumstances. The aim should be to understand the situation and plan appropriately, rather than putting unnecessary pressure on an employee who is unwell.

2. Obtain Appropriate Medical Evidence

Where appropriate, employers may need up-to-date medical information to understand the employee’s ability to work and prospects of returning.

Medical evidence can be particularly important where the employer is considering capability or reasonable accommodation.

3. Consider Reasonable Accommodation

Where disability may be relevant, employers should consider whether reasonable accommodation could support the employee’s return or continued employment.

This should be considered before reaching a final conclusion about capability.

4. Assess the Impact on the Business

An employer is entitled to consider the genuine operational impact of long-term absence.

For a small Cork business, for example, one employee’s prolonged absence may place significant pressure on other staff and affect the delivery of services.

That impact is relevant, but it should be considered alongside the employee’s circumstances and legal rights.

5. Consider Alternative Arrangements

Depending on the role and circumstances, employers may consider whether alternative duties, temporary changes or a phased return could be practical.

Not every adjustment will be possible, and employers are not necessarily required to create an entirely new role. The important point is that relevant options should be considered rather than dismissed without examination.

6. Follow a Fair Procedure

The Workplace Relations Commission’s Code of Practice on Grievance and Disciplinary Procedures emphasises rational and fair procedures, including giving an employee an opportunity to respond and ensuring fair and impartial consideration of relevant evidence and circumstances.

Where a capability dismissal is being considered, employers should therefore ensure that their procedures are clear, consistently applied and appropriate to the circumstances.

Common Mistakes in Managing Employee Sickness Absence

Some of the most significant risks arise when employers move too quickly.

Common mistakes include:

• Treating a particular period of absence as an automatic reason for dismissal.
• Making decisions without obtaining up-to-date medical information.
• Failing to consider reasonable accommodation.
• Assuming that an employee with a disability cannot return to work.
• Applying an absence policy rigidly without considering individual circumstances.
• Failing to communicate appropriately with the employee.
• Ignoring the potential impact of the decision under equality legislation.
• Failing to follow fair workplace procedures.
• Keeping inadequate records of meetings, communications and decisions.

These issues can become particularly important if an employment dispute later reaches the Workplace Relations Commission (WRC).

What About Unfair Dismissal?

An employee who is dismissed may, depending on their circumstances and eligibility, have grounds to challenge the dismissal under the Unfair Dismissals Acts.

The WRC explains that capability can be a potentially fair reason for dismissal, but employers should have clear dismissal procedures and ensure that appropriate procedures are followed.

This means that employers should not assume that having medical evidence supporting an employee’s inability to work automatically makes dismissal safe.

The reason for the dismissal, the evidence available, the steps taken by the employer and the fairness of the process can all be relevant.

For employers in Cork considering a capability dismissal, obtaining employment law advice before reaching a final decision can help identify potential issues at an early stage.

A Practical Checklist for Cork Employers

Before taking significant action in relation to long-term sickness absence, an employer should consider:

• Do we have up-to-date information about the employee’s ability to work?
• Have we maintained appropriate communication with the employee?
• Have we considered whether disability may be relevant?
• Have we considered reasonable accommodation?
• Have we assessed the likely timeframe for a return?
• Have alternative duties or working arrangements been considered?
• Have we considered the genuine operational impact on the business?
• Are our decisions consistent with our workplace policies?
• Have we followed a fair and appropriate procedure?
• Have we kept appropriate records?
• Have we considered the potential for an unfair dismissal or discrimination claim?
• Have we obtained employment law advice before commencing a capability or dismissal process?

This checklist is a practical starting point and should not be treated as a substitute for advice on a specific employment situation.

When Should a Cork Employer Seek Legal Advice?

Legal advice can be particularly important where:

• An employee has been absent for a prolonged period.
• There is uncertainty about whether or when the employee can return.
• A disability may be involved.
• Reasonable accommodation is being requested or considered.
• The employer is considering capability dismissal.
• There is a concern about unfair dismissal.
• An employee has raised a discrimination or equality complaint.
• A matter may potentially proceed to the Workplace Relations Commission.

Early advice can help employers understand the legal framework before a difficult employment decision is made.

How Dylan Green & Associates Solicitors Can Help

Dylan Green & Associates Solicitors advises employers and employees in Cork and throughout Ireland on a wide range of employment law matters.

The firm’s employment law practice includes unfair dismissal, discrimination, bullying and harassment, workplace disputes, grievances and disciplinary matters, employment contracts and representation before the Workplace Relations Commission.

For Cork businesses and SMEs dealing with a complex sickness absence issue, professional advice can help clarify the legal position before a capability or dismissal process is started.

Employers considering dismissal because of long-term absence should seek advice before taking a final decision. Early legal guidance can help identify potential issues relating to capability, reasonable accommodation, disability discrimination and unfair dismissal, and may reduce the risk of a dispute progressing to the Workplace Relations Commission.

Conclusion

Long-term sick leave can create genuine challenges for employers, particularly where a prolonged absence affects staffing and business continuity. However, Irish employment law does not provide a simple rule allowing an employee to be dismissed after a particular period of sickness absence.

Employers should consider the available medical evidence, the employee’s prospects of returning, reasonable accommodation where relevant, the operational needs of the business and the requirement for fair procedures.

For Cork employers and businesses across Munster, taking a structured approach can help balance legitimate business requirements with employees’ employment and equality rights.

Where a capability dismissal or other significant employment decision is being considered, obtaining specialist employment law advice in Cork before taking action can help employers understand their obligations and manage potential legal risks.

Frequently Asked Questions

How long can an employee be on sick leave in Ireland?

There is no single period after which an employee must automatically return to work or be dismissed. The appropriate approach depends on the circumstances, including medical evidence, the employee’s prospects of returning and the nature of their role.

Can an employer dismiss an employee on long-term sick leave in Ireland?

A dismissal may potentially be based on capability where an employee is unable to perform their role, but long-term sick leave does not automatically make dismissal lawful. Employers should consider medical evidence, reasonable accommodation, equality obligations and fair procedures before making a decision.

What is capability dismissal?

Capability can be a potentially fair ground for dismissal where an employee is unable to perform the work for which they were employed. However, the circumstances and procedure surrounding the dismissal remain important.

Does disability affect long-term sickness absence?

It can. Where an employee has a disability, the employer may have obligations under equality legislation, including consideration of reasonable accommodation.

What is reasonable accommodation?

Reasonable accommodation involves appropriate measures that may enable a person with a disability to participate in employment, subject to the requirements of Irish equality legislation. The appropriate measures depend on the individual circumstances.

Can an employee make an unfair dismissal claim after being dismissed following long-term sick leave?

Depending on their circumstances and eligibility, an employee may be able to challenge a dismissal under the Unfair Dismissals Acts. The WRC provides for complaints concerning unfair dismissal to be referred for adjudication, subject to applicable requirements and time limits.

When should a Cork employer contact an employment solicitor?

Employers should consider obtaining legal advice where long-term absence becomes complex, particularly if disability, reasonable accommodation, capability dismissal, unfair dismissal or a potential Workplace Relations Commission claim is involved.

Contact Dylan Green & Associates Solicitors

If you are a Cork employer dealing with long-term sickness absence, capability concerns, reasonable accommodation or a potential employment dispute, Dylan Green & Associates Solicitors can provide professional legal guidance.

Office: Horgan’s Quay, The Waterfront Square, Cork
Phone: 021 470 8570
Email: info@greensolicitors.ie

Dylan Green & Associates Solicitors advises employers and employees in Cork and throughout Ireland on employment law matters, including workplace disputes, discrimination, unfair dismissal and representation before the Workplace Relations Commission.

Disclaimer

This article is provided for general informational purposes only and does not constitute legal advice. Employment law matters are highly fact-specific, and the legal position can depend on the circumstances of the employee, employer, medical evidence, employment contract and applicable legislation.

The information in this article should not be relied upon as a substitute for advice from a qualified solicitor. If you are dealing with a specific sickness absence, capability, dismissal, discrimination or reasonable accommodation issue, you should obtain professional legal advice before taking action.