
Seamus McGranaghan qualified as a Solicitor in O'Reilly Stewart Solicitors in 2003 and is an experienced Commercial Lawyer dealing with employment, commercial and education cases.
He has experience in the Industrial Tribunal representing both Claimants and Respondents and has provided seminars in relation to particular areas of employment law. Seamus is the only member of the Education and Law Association in Northern Ireland. He specialises in advising schools and colleges on policy matters, employment issues and student welfare. He is also responsible for the Education Law Quarterly Review.
In addition to having contributed at Legal Island’s Education Updates since 2010, Seamus in association with Legal Island provides a live “Employment Law @ 11” webinar on the first Friday of each month, dealing with all aspects of Employment law affecting Northern Irish employers.
So there's a very fine line between showing concern for somebody, trying to get them back in. And stress is obviously . . . you can actually just trigger somebody's illness or disability by engaging with them. So how would you deal with that?
Seamus: Well, I think your policy and procedures should be clear. And the expectation of the employee should be that during a period of absence, there will be contact that will be made by the business. The policy should be clear that the aim of the employer is always to assist the employee to return to work. There is that onus on the employer to give that assistance.
The only way that you can do that is through engagement. You need to understand what the problem is. What is the reason for the absence, and what are the limitations for the employee? What's preventing them from returning to work as a result of that? So really important that there is proper engagement.
Now, there are certainly circumstances that I've come across where you would say to . . . My advice would be to the employer to give a little bit of headspace here. Give a little bit of room for the employee. They're clearly struggling at the minute, whether that's of an issue that is stress resulting from something in their personal life, or whether it is stress that is arising from the workplace.
But there are those times where you do need to give a better room and a bit of space to the employee. But that should be managed, and through conversation with the employee, you could say, "Listen, I'll give you a bit of headspace. I'll not be in contact for two weeks, but I'll give you a ring in two weeks, and we'll have another discussion then to see how you are".
Certainly, it would be good practice that . . . I know that this can be very well-intended and just not viewed that way by the employee. But those discussions that happen between the employer's representative and the employee, they really shouldn't come from a difficult place. They should be coming from a supportive place of making inquiries as to how the employee is.
Explain to the employee the reason why you need to keep in contact, that maybe there's somebody else picking up the role, or you've brought somebody in on an interim basis, and you need to be able to work around their return to work, when that's going to be likely, and to be fair to somebody else that is maybe in on a "you're in for four weeks, but we might need you for longer" type thing.
So I think if you gave the explanation to the employee about all of that, it should assess in relation to their expectation that you're going to be in contact with them.
I think be clear with the employee about how the communication is going to take place. Ask the employee how they want to communicate. Is it by way of telephone? Is it by way of email? Is it by way of attending their home? Or do they want to meet in a sort of open third-party place, like a hotel? Or even a coffee in the park sometimes, obviously weather depending and all kind of stuff.
Have those discussions with the employee. Don't sort of shy away from that. But also don't leave the employee thinking that it's going to be an intimidatory meeting, and you're going to be forcing them to hand in their notice because they can't return to work. It's getting the balance right in relation to it.
In terms of engagement where you have that employee . . . Listen, I've had those circumstances where you have the employee who will not engage, who shuts down completely, and then you hear from another employee that they saw them out on a Saturday night at the local bar and they were dancing on the table. Those are the real infuriating circumstances that arise, and they do arise.
But again, look to lean on your medical evidence that you have. It's similar to the circumstances where you have an on-going disciplinary and somebody goes out on the sick.
When you're arranging your Occupational Health report, ask the Occupational Health doctor to comment on what the . . . Are they fit to attend meetings? Are they fit to have phone calls?
I have had reports back where OH have said, "We don't recommend that there's contact from work for a period of four weeks. But thereafter, we would encourage contact at that point. Just give him that little bit of headspace". That sets it down very clearly for everyone.
And then there's that fear factor of, "I don't want to lift the phone to this person because it's going to be about conversation. They're going to think I'm wanting to harass them to return to work or to resign". It's about managing that the best that you can, and about keeping a note of the telephone call that you have as well, recording what was discussed.
But if you can get at least documentary evidence or medical evidence to say that engagement is appropriate and that it should be happening, then you're clear to proceed with the employee.
If the employee is still refusing to engage, I would be writing to the employee at that point to say, "You're failing to engage with me. I've medical evidence to say that you're fit to engage with me. And if you don't engage with me, then I'm going to have to look at other alternatives here, which could include potentially disciplinary action". So that is how I would deal with it.
There's not a one-size-fits-all for these circumstances. It is frustrating. We often don't have a magic wand that we can wave in order to sort the problem out. But in the back of the mind, it should always be balancing of the reasonable approach of dealing with the employee and what the needs of the business are. And as you say, make sure you're keeping it documented.
Christine: Well, believe it or not, Seamus, that is nearly our time up. So I'm going to ask you for some of your top tips. What would be your three top takeaways on long-term absence?
Seamus: We do have the three types of absence. We have short-term. We have the intermittent absence, which is really the most difficult one to deal with. And then we have long-term absence as well.
The main point is to have a policy and procedure in place as to how you're going to deal with absence. If you're acting unilaterally, if you're acting in an inconsistent manner, you're going to come up against problems.
The best way to deal with it is to have the policy, to share the policy with the employees. Make sure that they are aware of what the policy is, where they can get their hands on it.
And again, set down in the marker at the start of absence. "This is what you should expect from the company. We are going to keep in contact with you. We are going to do our best to encourage you back to work. And we will take steps in order to facilitate you returning back to work because we're in a contractual relationship and we need you to be here".
So definitely have a policy in place. Act consistently in relation to it. It can be really tricky. You can have employees that you have so much sympathy for because of something that has happened in their life, and you end up treating those employees differently than you treat other employees.
Inconsistency. The big problem for inconsistency is that the employee will internalise and say, "Why am I being treated differently?" And they will come out with an answer that probably isn't reflective of the situation, but they will come back and say, "Is it because of my religion? Is it because of my disability? Is it because of my gender?" That's where the problems will arise, where you don't act consistently. So have a policy. Apply it consistently.
And I think the third one would be to have your red flag up for dealing with those matters that the Equality Commission have set out for us for when we're dealing with long-term absence when it comes to discrimination. Do be careful of it.
And I think ultimately and don't be afraid to deal with the problem. That was the opening point you made there, Christine. If you bury your head in the sand with it, you're going to end up with somebody out on absence for two-and-a-half, three, or four years, where it's never being dealt with.
And you're running at a risk of that employee ending up in a difficult position with monies owed to them in respect to holiday pay, and claims, and all sorts when you do come to try to deal with it down the line. Try and deal with it as you're working through the process.
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