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Does an employee have rights while off on certified sick leave?

Posted in : Seamus Says - Employment Law Discussion on 5 October 2018
Seamus McGranaghan
O'Reilly Stewart Solicitors

I am currently out on certified work-related stress. However, within one week, I received a letter from the HR department and this week, I received an email from the company director looking to meet me or take a call.

This contact is making me more anxious and I thought being out on certified sick leave would protect me from being contacted. In essence, I feel under pressure, as if I should make a commitment as to when I will return to work. Do I have rights while out on certified sick leave?

Seamus: I think this is a real question where balance needs to be applied. We don't know what the reason for the absence is here. You can imagine if it was along the lines of work-related stress, it could be a personal problem, maybe the sick line doesn't tell the employer very much.

Scott: Well, this person is saying it is work-related stress. So, let's take it on face value that they're being genuine.

Seamus: Yes.

Scott: There's a problem at work and they're out on sick and put in the sick line and the employer is saying, "I want to see you."

Seamus: Yeah. There is a right for the employer to keep in touch with the employee. I think it's wrong for the employer to get a sick line that says work-related stress and to sit back and do nothing and hope the employee is going to recover, that the issue is going to disappear into the air and they'll be back and everything will be hunky-dory again. I think that's just not going to happen.

But I think the employee has to accept and should expect that the employer will make contact with them, particularly if they're putting in that there's work-related stress, it's the duty of care of the employer to find out what is the reason for the stress and what can be done in order to rectify that.

Scott: And most of the time when I come across this, the first you know as an employer that there's work-related stress is when the sick line comes in. So, they've never mentioned it. There's no other indication. It just comes in and the doctor has written work-related stress on the fit note.

Seamus: It could be something as minor as there's a bad conversation happening between two employees or a manager of employees or there could be a longstanding bullying issue that's just built up and the employee can't handle it anymore to stay in work and often in those circumstances, it's not brought to their attention.

They haven't adopted the grievance policy and procedure or anything like that. There does have to be a realisation from the employee that certainly, if they put a sick line in from that, the red flag is up for the employer, the employer is going to take steps to try and find out what is wrong, how can we rectify it? How can we get this employee back to work?

Saying that, the employer should not be overstepping their mark and certainly the employees shouldn't be feeling harassed or worse than that, that their period of recovery is going to be lengthened by the actions of the employer. A lot of these circumstances that arise, really the best thing is to try to get contact with the employee, find out what the problem is, find out what's going on and take the next necessarily steps from there.

It may be that you will get an employee that will bury their head in the sand and sometimes genuinely enough, they won't feel fit enough to engage and you'll maybe get—I've had clients that have had calls from the employee's GP ringing them up to say, "You're harassing them, you're making this worse for them. Please don't contact them," or you'll get a letter from the GP or something along those lines.

For me, I think probably the advice in these circumstances where you would have an employee that is resistant to making contact, that you have to weigh up what is the issue here. It may be that it isn't a work-related stress matter, that it's something personal and they do just need a bit of time in order to get things sorted out in their private life. Where it's work-related stress, I would be stepping in to try to resolve that.

Scott: You would step in more quickly. The bottom line is maybe to go back to this person who sent the thing in, if they're listening, how can you solve a work-related stress issue if you don't go into work or meet your employer?

Seamus: Precisely.

Scott: It's not going to go away.

Seamus: It's not going to resolve.

Scott: It's going to build up. I've seen so many employees over the years who take time off, legitimately because they can't cope. They need a pressure valve and the longer they're off, the more it builds up because 24 hours a day, they've got nothing to do but think about the problem.

Then it kicks in - there's a realisation after a period - this organisation has been working without me. I am completely dispensable. Then it hits your ego and you go off and it's so much more difficult to get back to work. If you've been off even four to six weeks with stress-related things because genuinely, people start worrying about things.

So, my advice to this person that - to get your similar is trying to engage as quickly as you can because it's not going to go away. It's not going to get any easier just by taking time off. You've had a little break. If it is related to work, you've got to get in there and explain why. There are many different ways that that can be resolved through coaching, counselling, mediation, all kinds of stuff would assist this person to hopefully get back to work without it being threatening.

Seamus: Yeah. No. Absolutely. I think the other pattern that I see arising is that you will have an employee that is disgruntled, is suffering from work-related stress, takes time off, maybe takes two weeks off, comes back to work, everything is good for maybe another two weeks and then there's another episode and there's another period of absence and nothing gets resolved and then you're into this pattern of time off happening all the time.

You're just not getting the contractual benefits from the employee of them coming to work and doing the job that you want them to do from that point of view. Sticky plasters tend to not work in these circumstances. I think where I don't want to come very much from the employer's mindset because I know that we've had this question from an employee.

But from the employer's point of view, if you have an employee that is not playing ball with you, isn't engaging, your only step may be that you're going to get an occupational health appointment set up and have the employee evaluated by the medical practitioner. And maybe one of the questions that you'll ask the doctor to address is, "Is this person fit and able to attend the meeting with me?"

Scott: Because it's a meeting. You're not asking them back to work. It's a meeting.

Seamus: Exactly.

Scott: And you would move more quickly as well, I think, if somebody's saying it's work-related stress, you've got to solve the thing. But you don't have to wait six months because you get paid six months. You can take action and manage your absence.

Certainly, from my experience, you might come across where the occupational health report will record the fact that there is a stress at work and the doctor will record that it's not going to get better until it's addressed and dealt with. They tell the employee that, but when the employee sees that in black and white sometimes a penny drops and they think, "Okay, look, I am going to have to face up to this and have it dealt with."

Sometimes, that's your only option. Alternatively, you can get engaged with the GP. But the worry is always with a GP report that it's just not as independent as the occupational health report. And I suppose just from the employee's point of view in terms of being straight down the line with them as well, there are circumstances sometimes within the contract, it does provide the right for the employer to seek their medical notes and records.

They'll always have to consent to that, but it's just a step in case they get that and they're very surprised and they think that. I would get calls from some employees saying, "I can't believe they're asking for my GP notes and records. That's such an invasion of my privacy." But it may be that the occupational health doctor has said, "I need to see the notes and records," to see what's going on here. It's just a warning to the employee as well to maybe expect that if this was to drag on for longer than it should.

 

This article is correct at 05/10/2018
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Seamus McGranaghan
O'Reilly Stewart Solicitors

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