Medical certified sick leave resulting in verbal warning

Perhaps somebody could clarify the legality of this. Somebody I know has missed four days work in the past six months. All days have been certified sick leave. They are allowed miss up to three periods for sick leave - e.g. a two-week sick leave counts as one period. This person missed two separate days, and one two-day period. They've been given a verbal warning and told if they miss a single day in the next six months the verbal warning will progress to a written warning. In other words, if this person is dying sick even once in the next six months, they must show up at work. The verbal warning resulted in their being questioned, by a manager whom they neither trust nor rate, about the private information they gave to HR as part of the medical cert. This, in particular, has left a bad taste.

In my job, certified sick leave is not questioned. Ever. Is this company in breach of any law?

seamus

No. Sick leave being certified is irrelevant, it has no meaning in employment law.

Companies typically request certs to discourage messing around and the DSP require certs before you can claim illness benefit.

But being certified doesn't mean that an employee can be absent from work without consequence, and there's nothing in employment law that requires employees to get certs or requires employers to recognise them.

Your friend has been unlucky in that they've fallen foul of a company which has rigid policies and applies them. However the fact that these policies exist and are applied actually weakens her case - if the policies were unclear it would be easier to claim they're being unfair.

cml387

Many companies manage sick leave by using a formula called the Bradford factor, which you can google, but essentially it measures employee absence and adds a weighting for the incidence of absence as well as it's length.

A company would need to be very careful in questioning a sick cert but as Seamus points out that is not really relevant, it's the absence itself that's the problem.

irishgeo

Fuaranach wrote: »

Perhaps somebody could clarify the legality of this. Somebody I know has missed four days work in the past six months. All days have been certified sick leave. They are allowed miss up to three periods for sick leave - e.g. a two-week sick leave counts as one period. This person missed two separate days, and one two-day period. They've been given a verbal warning and told if they miss a single day in the next six months the verbal warning will progress to a written warning. In other words, if this person is dying sick even once in the next six months, they must show up at work. The verbal warning resulted in their being questioned, by a manager whom they neither trust nor rate, about the private information they gave to HR as part of the medical cert. This, in particular, has left a bad taste.

In my job, certified sick leave is not questioned. Ever. Is this company in breach of any law?

The last part is a breach of the data protection act.

Frequently Asked Questions - FAQ
3. Data protection in the workplace

3.1 What type of background checks can I carry out on potential employees?
3.2 How can I seek Garda vetting of a potential employee?
3.3 What is the position in relation to enforced subject access requests?
3.4 When applying for a new job, can a prospective employer seek the PPSN of candidates as part of the application process?
3.5 How long can an organisation retain employee data?
3.6 Can my employer keep a copy of my passport?
3.7 Can my employer demand that my sick certificates set out the nature of my illness?
3.8 Can my employer access my email or internet usage?
3.9 Can my employer post my photograph on the internet / intranet without my consent?
3.10 Can my employer use GPS / Vehicle Tracking Systems?
3.11 Can a sales representative take a list of clients when leaving the employment?
3.12 A Company is being taken over by another company. Does the new organisation need consent before medical files are transferred?
3.13 I have supplied my CV and other personal information in response to a job advertisement which I now suspect was a bogus advertisement, is there anything I can do to minimise the risk of fraudulent activity?
3.14 Requests for Presentations and Training

3.1 What type of background checks can I carry out on potential employees?

The key to compliance with data protection is to inform the potential employee of any potential checks that may be undertaken and seek their specific consent for certain types of checks, e.g. qualification checks, character reference checks.

Any information that is legitimately in the public domain can generally be accessed within the context of data protection requirements without giving rise to concerns. The person should be provided with any such information, however, in order that they can have an opportunity to provide comments on it.

An employer is entitled to ask an employee to declare if they have any previous relevant criminal convictions which might impact of the desirability of them performing a particular task. However, an employer should only be concerned about convictions that relate to the particular job on offer. For example, a job involving driving may justify the employer asking about previous driving convictions. This requirement may be updated shortly via a Spent Convictions Bill which was recently introduced by the Government which will allow potential employees (not where they are dealing with children or vulnerable adults or other sensitive positions) in certain situations the option not to provide such information.

Organisations/employers seeking to access information held by a credit referencing organisation about prospective or current employees could present data protection concerns. Any forced requirement placed upon employees to seek credit history information from the Irish Credit Bureau, for example, for employment screening purposes could be considered a breach of the Data Protection Acts.
Certain sectors, for example where employees have contact with children or vulnerable adults, are permitted to make use of Garda Vetting checks which are carried out with the consent of the person.


3.2 How can I seek Garda vetting of a potential employee?

Under the Data Protection Acts information about the commission or the alleged commission of an offence by a person falls within the definition of sensitive personal data.

Currently, there is no comprehensive statutory basis which underpins the vetting process. The Vetting Bill currently before the Oireachtas will provide that basis when enacted. The Office of the Data Protection Commissioner supports the current procedure for managing requests for vetting in this jurisdiction. The procedure is based on the consent of the person to the release of certain types of information held by An Garda Síochána in respect of that person.

At present the only garda vetting services on offer concern the vetting of persons in contact with children or vulnerable adults. Vetting also takes place in relation to certain State employees working in sensitive areas. Vetting has also been extended to employees covered by the Private Security Services Act 2004 (bouncers, nightclub security staff etc).

More information is available here.


3.3 What is the position in relation to enforced subject access requests?

An 'enforced access request' is where an applicant is obliged by a potential employer or organisation they are dealing with to make an access request under Section 4 of the Data Protection Acts to a data controller. The individual would typically then be asked to subsequently provide this information to their employer/prospective employer/organisation they are dealing with.

An employer who requires an employee or prospective employee to make such an access request commits an offence under the Data Protection Acts.

In the case of An Garda Síochána, it advises that the information released under an access request should not be considered as a formal vetting procedure for employment or other purposes.



3.4 When applying for a new job, can a prospective employer seek the PPSN of candidates as part of the application process?

An employer should only seek your PPSN if you are successful at the recruitment process and are actually taking up employment with the organisation. An employer requires the PPSN of each employee for Revenue purposes. There is no basis for a prospective employer to capture a candidate's PPSN at the application stage.


3.5 How long can an organisation retain employee data?

The Data Protection Acts state that personal information held by Data Controllers (an organisation) should be retained for no longer than is necessary for the purpose or purposes for which it was obtained. If the purpose for which the information was obtained has ceased and the personal information is no longer required, the data must be deleted or disposed of in a secure manner. However, the Acts do not stipulate specific retention periods for different types of data, and so organisations must have regard for any statutory obligations imposed on them as a data controller when determining appropriate retention periods.

In relation to HR records, it is our understanding that, in accordance with the Organisation of Working Time Act 1997, employers are required to keep records of holidays, public holidays, special leave, rest breaks, start and finish times of each employee for each day and sick leave for a period of 3 years.

There are also requirements in relation to the retention of financial/tax records, as well as obligations to retain certain categories of information for superannuation/pension purposes.

In relation to the retention of recruitment records for unsuccessful candidates, we would consider a retention period of 12 months to be appropriate.


3.6 Can my employer keep a copy of my passport?

An employer may ask to see your passport at recruitment stage if this is necessary to show that you are entitled to work in Ireland. An employer may note such passport details on your personnel file. It should not be necessary for an employer to retain a copy of your passport and such action could be a breach of the Data Protection Acts.


3.7 Can my employer demand that my sick certificates set out the nature of my illness?

In general, no. Under the Data Protection Acts, medical data is defined as sensitive data. An employer has a legitimate interest in knowing how long an employee is likely to be absent from work. S/he also has a legitimate interest in knowing whether an employee, following an accident or illness, is capable of doing particular types of work. Requiring employees to produce standard individual doctor's certificates to cover absences due to illness does not therefore present any data protection issues. But an employer would not normally have a legitimate interest in knowing the precise nature of an illness and would therefore be at risk of breaching the Acts if s/he sought such information. Even the consent of the employee may not allow the disclosure of such information to an employer as there is a doubt as to whether such consent could be considered to be freely given in such circumstances.

There may be certain, very specific circumstances where a doctor may be legally obliged to report certain conditions to an employer for health and safety reasons but this would not involve making a full file available. Some organisations may also have a requirement that employees, who are perhaps on long term sick leave, are referred after a certain period to a company doctor for examination and the doctor will provide a report to the company advising whether they consider the person fit for work or not (again this would not involve the provision of a detailed medical report to the employer nor access to previous medical files). Neither of these scenarios would involve a breach of the Data Protection Acts.

HR had no right to disclose the medical data to anyone.

Shelflife

irishgeo wrote: »

The last part is a breach of the data protection act.



HR had no right to disclose the medical data to anyone.

The OP gave the medical data to the company , of course they can give this information to relevant people.

If the OP had a severe nut allergy and HR sat on this information while the manager sent them to a peanut tasting class there would be uproar.

irishgeo

Shelflife wrote: »

The OP gave the medical data to the company , of course they can give this information to relevant people.

If the OP had a severe nut allergy and HR sat on this information while the manager sent them to a peanut tasting class there would be uproar.

no they cant.

as if they person wouldnt say they cant go to a peanut tatsing class due to a nut allergy.

goldenhoarde

Fuaranach wrote: »

Perhaps somebody could clarify the legality of this. Somebody I know has missed four days work in the past six months. All days have been certified sick leave. They are allowed miss up to three periods for sick leave - e.g. a two-week sick leave counts as one period. This person missed two separate days, and one two-day period. They've been given a verbal warning and told if they miss a single day in the next six months the verbal warning will progress to a written warning. In other words, if this person is dying sick even once in the next six months, they must show up at work. The verbal warning resulted in their being questioned, by a manager whom they neither trust nor rate, about the private information they gave to HR as part of the medical cert. This, in particular, has left a bad taste.

In my job, certified sick leave is not questioned. Ever. Is this company in breach of any law?

I wouldn't have though so. Each company has different policy's and approaches. A lot of companies don't put much faith in Certs as they are relatively easy to get. Might cost a bit though


The policy in the company is UP to 3 periods so this person has reached that limit so the company's policy then must be to issue a verbal warning.

As to whether its fair on not is subjective but a company does need to have a policy that it enforces. Otherwise no-one would turn up for work!

If they are sick again in the next 6 months it may be wise to turn up for work and be sent home by the company. Not ideal but then its done by the company rather than the employee.

As to the sharing of data - HR would have told the manager X was ill, maybe the rest was gleaned from the "water cooler". Or the manager asked HR what the issue was and HR answered as they though the manager was concerned!

Stealthfins

I don't work for a company with those kind of sick polices.

Something really unfair and ruthless has happened in Irish companies over the last 10 year's.

The 70's 80's and 90's were more relaxed and laid back,workers had more rights,and weren't working in fear.

The work house's will be around next.

seamus

irishgeo wrote: »

HR had no right to disclose the medical data to anyone.

You've misinterpreted that.

HR (or the company) have no right to demand medical data from the employee.

Where it has been disclosed voluntarily they may relay that information to individuals who have a legitimate reason to know it. In this case, we don't know where the manager sits, but if they are within the line management of the individual, you could argue that the nature of the illness is relevant to that manager, if it's been supplied.

I don't work for a company with those kind of sick polices.

Something really unfair and ruthless has happened in Irish companies over the last 10 year's.

The 70's 80's and 90's were more relaxed and laid back,workers had more rights,and weren't working in fear.

The work house's will be around next.

I actually disagree entirely. Through the 70s, 80s and 90s where the unions ruled the roost, these kinds of inelastic, draconian employment practices were rife. Unions loved them because hard rules mean that an employee is basically unfireable once they paint within the lines, regardless of how pathetic or useless they are. Which is inherently unfair.
The policy described in the OP is pretty typical of the kind of old-style companies where employees will "take" sick days that they haven't "used" at the end of the year.

Over the last 15/20 years companies have become far more flexible and reasonable about rules and practices within the workplace. Such that employees in general are given lots of rope to behave as they like if they do a good job, while their layabout co-workers get less leeway.

L1011

Stealthfins wrote: »

I don't work for a company with those kind of sick polices.

Something really unfair and ruthless has happened in Irish companies over the last 10 year's.

The 70's 80's and 90's were more relaxed and laid back,workers had more rights,and weren't working in fear.

The work house's will be around next.

My experience is that it would usually not be Irish firms with these policies - although mine does it is actually from Belfast originally. Far more normal in foreign owned firms, particularly US ones.

MarkAnthony

Companies with these kind of policies usually have large number of employees in semi-skilled positions and manage by process. It's all well and good throwing your toys out of the pram about it but generally they can be excellent employers. I've experience of such an employer who is rated one of the best employers to work for in the UK and is even easier to work for here. Just don't be taking loads of time off sick. Three incidents in 6 months is excessive and the company are right to engage the disciplinary process.

Businesses are just that, businesses; if someone is breaching their contract they will act accordingly. It's a shame where the person is genuinely sick, but that's for the state's safety net to kick in, not private businesses. As for working in the 70s, 80s, 90s - people forget how people were talked too back then, the lack of awareness of employment rights and the treatment many people got due to sex, sexual orientation, race or religion, so let's not look back with rose tinted glasses.

In regard to another manager being involved that is completely proper. It should be an independant manager involved and not the OP's line manager. The investigation should also have been carried out by someone other than the manager holding the hearing. It's generally fine for the OPs line manager to carry out the investigation stage.

Mrs OBumble

OP, your friend has been sick enough to require attending a doctor and taking time off three times in six months.

They really should be considering whether they are healthy enough to fulfil their employment contract - on the surface, it doesn't sound like it.

Fred Swanson

This post has been deleted.

screamer

Companies can also demand that you visit the company doctor for a check up and they will get a report back on whether you are fit to return to work or not. Some companies make this routine after x number of days off or instances of illness. Some companies will call an employee every day they are off sick to ask how they are and when they'll be back. Some companies will even fire you for repeated absences certified included. The work place is not a playground and many employers wont and dont tolerate sickies being pulled. And Irish companies too you'd be shocked to read the employment contracts some people are stuck with. All legal but stink to high heaven. No wonder there is huge unhappiness and attrition in some companies.

hullaballoo

Jonas Gutierrez had some success recently regarding this particular issue.

mdebets

Mrs OBumble wrote: »

OP, your friend has been sick enough to require attending a doctor and taking time off three times in six months.

They really should be considering whether they are healthy enough to fulfil their employment contract - one the surface, it doesn't sound like it.

Or the OP's friend could be sick due to the company's policy forcing too many people to come sick to work, thereby making the OP's friend catching the illness from co-workers three times in 6 months.

MarkAnthony

mdebets wrote: »

Or the OP's friend could be sick due to the company's policy forcing too many people to come sick to work, thereby making the OP's friend catching the illness from co-workers three times in 6 months.

So all the OP needs to do is show that everyone else is off as much or more than they are at the disciplinary.

mdebets

MarkAnthony wrote: »

So all the OP needs to do is show that everyone else is off as much or more than they are at the disciplinary.

No, if everyone would be off as much as the OP's friend, he might not have the problem as the sick collegues would have staid at home, not passing the sickness on to him.

MarkAnthony

mdebets wrote: »

No, if everyone would be off as much as the OP's friend, he might not have the problem as the sick collegues would have staid at home, not passing the sickness on to him.

So his issue is he's immunocompromised*? Still not the company's fault. If he's too weak to work, he's too weak to work.

Do you really want to go down this ridiculous line of argument? I'm game if you are.


*fecking hell spelled that right first time - go me!

rock22

MarkAnthony wrote: »

So his issue is he's immunocompromised*? Still not the company's fault. If he's too weak to work, he's too weak to work.

Do you really want to go down this ridiculous line of argument? I'm game if you are.


*fecking hell spelled that right first time - go me!

Catching colds/flue from work colleagues has nothing to do with being "immunocompromised" .
Mightit be worth your while reading up on medical conditions before posting?

MarkAnthony

rock22 wrote: »

Catching colds/flue from work colleagues has nothing to do with being "immunocompromised" .
Mightit be worth your while reading up on medical conditions before posting?

Catching a cold is not a reason to be off work.

If someone genuinely has a reason they might be more susceptible to flu or they work in a salt mine of a company - get a flu shot.

None of this explains three absences in 6 months. The company both legally and morally (IMO) are completely in the right. Discarding morally as this isn't the subject of this forum the OPs friend has very little they can do. Appeal the decision but it seems cut and dried to me.

dobsdave

MarkAnthony wrote: »

Catching a cold is not a reason to be off work.

If someone genuinely has a reason they might be more susceptible to flu or they work in a salt mine of a company - get a flu shot.

None of this explains three absences in 6 months. The company both legally and morally (IMO) are completely in the right. Discarding morally as this isn't the subject of this forum the OPs friend has very little they can do. Appeal the decision but it seems cut and dried to me.

We have no idea why this person was out three times in six months, sometimes it goes like that.
If the person has a history of constantly calling in sick then fair enough for the company to seek action.
If it's an outlier, then they are way over the top, a bit like some of the posters on this thread.

acequion

Mrs OBumble wrote: »

OP, your friend has been sick enough to require attending a doctor and taking time off three times in six months.

They really should be considering whether they are healthy enough to fulfil their employment contract - on the surface, it doesn't sound like it.

Workers and their pesky health problems eh! Why not get rid of em all and replace with machines,what a brave new world that would be!

Some of you would want to be careful what you wish for!

Kalimah

I have a colleague who has been out for the whole of last week plus four days in February and more time in January. Her sick leave record is unbelievable and when she is there does damn all work. I hadn't heard of the Bradford Factor until I read this thread. HR don't seem to be doing anything about it and I've come to the conclusion that local management are not reporting it up the line. All the absences are certified by the way. There isn't anything wrong with the woman that a good run in the park and a rigorous diet wouldn't fix. Morale is at an all time low because of this messing.

P_1

mdebets wrote: »

Or the OP's friend could be sick due to the company's policy forcing too many people to come sick to work, thereby making the OP's friend catching the illness from co-workers three times in 6 months.

This is one flaw of those rigid policies IMO. You end up with people being afraid of calling in sick when the better thing long term for the company is for them to stay at home and not pass their illness on to others around them. Rather than having one employee out for a day or two you end up with many employees operating at less then optimum efficiency for days due to catching whatever their sick colleague had.

MarkAnthony

I can't talk for the OP's company as I don't know who it is. However as I've said I do have experience of a couple of companies with similar policies. One more recently. It's not generally 3 absences = verbal warning. It's 3 absences triggers an investigation. The outcome of the investigation will determine the sanction or support if any.

Personally I work with over 500 people - they are regularly afflicted with illness. That illness manifests on a Saturday and Sunday morning. It's debilitating and I've nothing but sympathy for them. I'm not sure it's contagious but does seem to stem from the same source. What's amazing about this illness is it's less and less likely to occur the longer it is after the last pay day.

There will always be people that flock to support management, there will always be people that flock to support the employee. Perhaps we might have a little bit of cop on though as to why these policies exist and how often they actually get it right.

MarkAnthony

dobsdave wrote: »

We have no idea why this person was out three times in six months, sometimes it goes like that.
If the person has a history of constantly calling in sick then fair enough for the company to seek action.
If it's an outlier, then they are way over the top, a bit like some of the posters on this thread.

Do you mind if I ask what sort of industry you work in where three absences in six months wouldn't be considered a huge outlier in of itself?

Very rarely it does go like that, rarer still it's three random illnesses rather than an ongoing issue which should be treated differently. One might even say it would be fair enough, in the absence of a good excuse, to expect the employee to have a 6 month period where they don't have any sickness for a 6 month period after such an unlucky six months.