Managers and employers should beef up working-time recording systems in line with the new 'right to disconnect' legislation, a Mason Hayes and Curran LLP (MH&C) employment law webinar heard this morning (21 April).

The new ‘right to disconnect’ regime should be “widely communicated” to employees and time-recording systems should give adequate data on the length of the working day, MH&C employment law partner Melanie Crowley said.

MH&C employment law partners Ger Connolly and Avril Daly also addressed the issue of how disciplinary proceedings can be halted when the employee in question goes on medical sick leave.

Difficult

Continuing a disciplinary process for an employee on sick leave is “extremely difficult”, Ger Connolly said.

The disciplinary process becomes secondary to a medical dispute, where the employee is sent to the company doctor to establish fitness for work, Connolly said.

If they are not fit for work, the employee is generally not fit to participate in a disciplinary process.

“We get into a situation where, when the medical certificate comes in, a pause is pressed on the disciplinary action,” he said, citing one case of a three-year gap between an invite to a meeting and the meeting taking place.

Connolly referred to the “circular effect” of disciplinary processes being detrimental to an employee’s health, and said only a very brave employer would push through in these circumstances. 

Melanie Crowley said the question of fitness to work should be separated from the question of fitness to participate in a disciplinary process.

A disciplinary meeting can be heard in an employee’s absence, but they must be afforded a reasonable amount of time to get fit.

“There will be a tipping point where the employer will simply have to push on with a disciplinary meeting. Otherwise the employee will remain on sick leave and the disciplinary issue will remain outstanding,” Connolly said.

There is a danger in this situation that key people will have left the organisation, adding to an already cumbersome process.

Respond in writing

The employee can be asked to respond in writing to the process, he said, or make other significant efforts to engage.

An appeal should be granted in all disciplinary actions leading to dismissal, the webinar heard, so the employees have an avenue to defend themselves when they become fit for work.

Employees on sick leave may be paid for up to six months, the webinar heard.

“It seems to be relatively easy, from our combined experience, to get a medical cert that says ‘you are stressed and shouldn’t go to work’,” Melanie Crowley said.

Some workplace policies now explicitly make sick pay discretionary, where an employee goes on sick leave following an invite to a disciplinary investigation meeting, Gerard Connolly said.

'Lazarus-like'

“It’s very effective, because there is a big correlation between the employee using all sick leave and then Lazarus-like, they are miraculously able to attend once the sick leave has expired,” Connolly said.

He urged employers to examine their sick-pay policies, and said that employer patience was often required in dealing with these issues.