# Co changing policy & retrospectively diciplining employee on certified sick leave.



## Kerrylady (28 Jul 2010)

Hi,

I was hoping someone might give me some advise I can pass on to my friend. 

She was off work several times over the past 12 months due to an illness and each and every time she was off she was certified by her doctor. 

Recently her employer has told her that she is to be disciplined over the time she had off over the past 12 months. 

The company she works for recently changed their policy regarding sick days. They are arguing that they can implement it by backdating it to 12 months ago. 

Am I right in assuming this is wrong as all employee's have to be on notice of any policy changes. 

She said she is currently within the terms of her employment but this new policy is putting her outside the terms. 

Any feedback would be greatly appreciated.


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## Mpsox (28 Jul 2010)

I doubt very much if they can retrospectively apply a policy, however did your friend adhere to the requirements of the previous policy?. If requred, did she advise her employer as soon as possible that she was sick, are her sick notes clear (for example, I've seen doctors sign sick notes as simply someone being "sick" where the underlying cause was embarrasing), did she claim sickness benifit whilst being off (many companies require you to do so and deduct the value of the claim from your salary)?


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## mtk (28 Jul 2010)

As a non expert i would think any disclplining over sick leave is dodgy given disability legsilation and could be construed as discriiination.
What is the new policy ?


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## TLC (28 Jul 2010)

Would the "old" policy come under her contact - I don't think they can just change conditions of employment without 1. consultation & 2. New Contract?


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## Mpsox (28 Jul 2010)

mtk said:


> As a non expert i would think any disclplining over sick leave is dodgy given disability legsilation and could be construed as discriiination.
> What is the new policy ?


 
Providing a company has clear policies around sickness and the individual is in breech of that policy, then a company can instigate discplinary action. Breeches might be not ringing in when sick, not providing doctors notes, etc etc. It is a minefield but a company is not obliged to hold a job open indefinately for someone who is physically incapable of doing it.


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## Kerrylady (28 Jul 2010)

Thank you all for your responses. The situation is as follows; 

The new policy is that if an employee is off for more than 4 instances within a rolling 12 month period, then they will enter into disciplinary action. This includes certified sick leave. The old policy didn't mention anything about this. Her employment contract is very basic and in regards to sickness it just states a medical cert is required if an employee is off for more than 3 consecutive days. It doesn't mention anything else. 

Can the company legally backdate this policy 12 months when it was only implemented recently.  Is there some legislation which states that employee's have the right to be informed?

Thanks


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## mtk (28 Jul 2010)

Mpsox said:


> Providing a company has clear policies around sickness and the individual is in breech of that policy, then a company can instigate discplinary action. Breeches might be not ringing in when sick, not providing doctors notes, etc etc. It is a minefield but a company is not obliged to hold a job open indefinately for someone who is physically incapable of doing it.


 
thank you for that. Does this ever happen as you say itd a minefield and i would have thought it was very unlikely to hold up in an employment appeals tribunal. 
To me it sounds like the new policy is unenforcable nonsense which the company is just trying on


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## aristotle (28 Jul 2010)

I am not an expert in this but I understand that discplinary action can be taken is the event of a lot of sick leave (even when certified) as it impacts your capability to do you job.


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## shipibo (28 Jul 2010)

Retrospective application of policies will not stand up in Labour Commisioners etc ..... 

I believe the comapny are applying pressure to your friend to see how she reacts, I would advise


http://www.flac.ie 

Ask for industrial relations expert , or contact an industrial relations solicitor and get them tosend letter to HR dept.


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## niceoneted (28 Jul 2010)

Based on the new policy an employee would be better to stay off sick if they know they will have to be off on a few occasions with whatever illness they have until they are better which is more disadvantageous to the company.


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## ajapale (28 Jul 2010)

Is you friend a member of a trade union?


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## Complainer (28 Jul 2010)

mtk said:


> As a non expert i would think any disclplining over sick leave is dodgy given disability legsilation and could be construed as discriiination.


Most sickness absences would not meet the definition of disability under the Employment Equality Acts, so the discrimination scenario wouldn't apply.

However (as another non-expert), I don't believe that back-dating would stand up, and I don't believe that a simple ban based on number of absences would stand up. This is a pretty silly approach.


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## partnership (28 Jul 2010)

A lot of policies would have something simlar over rolling periods.  However if it is just introduced they will probably only be able to take it from now if the fourth period happens after policy introduced if that makes sense.  Also even though the policy may state disciplinary action takes place if the sick leave was proper it would be unlikely that they would succeed in any court ie suppose you were off sick over 4 periods with a cancer related illness, or a disability related illness this is legitimate sick leave.  Disciplinary temds to kick in where there are patterns or reason to suspect abuse.


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## hippy1975 (28 Jul 2010)

Kerrylady, as partnership says, they can probably only start applying it now if the fourth instance is after the implementation of the new policy, but they can implement it, in that ultimately they can decide not to pay sick pay if they have reason to believe the policy is being abused. I have experience of this and the mention of sick pay possibly not being covered resulted in several remarkable recoveries


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## Complainer (28 Jul 2010)

hippy1975 said:


> but they can implement it, in that ultimately they can decide not to pay sick pay if they have reason to believe the policy is being abused.


That's very different to making it a disciplinary issue, which is what seems to have been proposed in this case.


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## becky (28 Jul 2010)

We had a new managing attendance policy implemented which became effective immediately. If an employee has 4 absences in the previous year the manager must meet the employee to discuss it. The clock started on the date the new policy was implemented so sick prior to the new policy did count. This initial meeting isn't a disciplinary meeting, it's a meeting to discuss attendance. I agree with this as the manager and staff have clear guidelines. I have to say I'd be very surprised if this meeting is a disciplinary meeting as it's simply bad practice. OP stated the employee was disciplined, what was the sanction?


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## Kerrylady (29 Jul 2010)

Thank you for all the helpful replies.

The disciplinary meetings are to be held next week. The new policy only comes into effect then but they are disciplining employee's who have had more than 4 instances of sick leave in the previous 12 months. Surely they should only be allowed to discipline for failure to comply after the policy has been implemented? The disciplinary measures are written notices. In some cases this will be a final warning which will lead to dismissal. My friend does not want to accept this written warning as it will be on her record. 

Thanks crumdub12 for the useful website - I have passed it on. 

I believe the company are merely chancing their arm hoping none will challenge it!


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## shipibo (29 Jul 2010)

Kerrylady,


    Another contact for your friend

[broken link removed]


    Friend should take their advice, and if agreed with adice from FLAC/NERA send letter to employer stating their issues with policy implemented.

     You can ask for representation in meetings with company, maybe an idea to invite a solicitor if  employer agrees to their presence.


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## mtk (1 Aug 2010)

[broken link removed]
this a list of  determinations which may be of help


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## Brendan Burgess (1 Aug 2010)

It's very unlikely to be a "disciplinary action". 

It's more likely to be a review of the reasons for the sick leave and an assessment of her ability to do her job given her sick leave.


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## Mpsox (2 Aug 2010)

mtk said:


> thank you for that. Does this ever happen as you say itd a minefield and i would have thought it was very unlikely to hold up in an employment appeals tribunal.


 
Yes, it does happen (indeed I've had to do it myself) but it is a very tedious process and can take some time. It will hold up in a tribunal if it is done right.

As other posters have said on here, it is quite possible that this could be a councelling discussion as opposed to a disciplinary one. 4 occassions of sick leave in a year is a lot, an employer has a responsibility under Health and Safety legislation to their employees so they may want to find out if it is something at work causing the issue. They may want to refer your friend to their doctor for example, if the issue is a recurring issue, they may want to know what the employee is doing to resolve the issue or to see if they can help in any way.


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