
The Bar of Ireland
Orchard Way, Killarney V93Y9W9.
DX: 51010 Killarney
Tel: (087) 4361270
Patrick's legal education is robust, beginning with a BCL Law Degree from University College Cork (2012-2016), followed by an LL.M in Business Law from the same institution (2016-2017), and culminating in a Barrister-at-Law Degree from The Honorable Society of King’s Inns in Dublin (2019-2021). He has extensive experience on the South-West Circuit, handling Civil, Family, and Criminal Law cases, as well as advising the Citizen Advice Service. He has worked as an employment consultant, dealing with workplace investigations and bankruptcy procedures.
Background:
In January 2024, the Complainant was on certified sick leave and provided a medical certificate to the Respondent in a timely manner. Despite this, she was denied statutory sick pay, and the Department of Social Protection withheld illness benefit, citing that her employer was required to pay sick pay for the first five days under the new statutory scheme. In July, she received official confirmation of this position from the Department. The Complainant argued that the Respondent should have adhered to the statutory scheme in January 2024, rejecting the Respondent's claim that their own scheme was superior. She provided detailed calculations showing that the Respondent’s scheme only benefitted employees absent for more than seven days. The Complainant also contested the comparison to the ‘Musgrave’ WRC Decision, emphasising that the Respondent lacked a collective agreement negotiated with a Trade Union.
The Respondent fully defended the claim, arguing that the obligations under the Sick Leave Act 2022 did not apply to the Complainant because their own sick leave scheme was, overall, more favourable than the statutory scheme. In their written submission, the Respondent claimed that their scheme’s payment terms were significantly superior to those in the statutory scheme, particularly considering that many employees earned higher wages than the Complainant, resulting in greater benefits. The Respondent addressed each test in s.9(2) of the Act, highlighting areas where their scheme was more advantageous, such as providing more sick leave days based on length of service. They acknowledged that the statutory scheme had certain advantages, such as no waiting period and a shorter qualifying period. However, they maintained that their scheme’s benefits, such as higher pay and increased sick days, outweighed these aspects. The HR Manager testified about recent revisions to the sick leave scheme, including reducing the waiting period and service requirement. Further, the Respondent cited precedents where their scheme was deemed more favourable than the statutory scheme, although they did not address specific figures presented by the Complainant.
Finding:
The Adjudicating Officer found the complexity of issues, stemming from the legislation and the Department of Social Protection’s interpretation, made the case less straightforward. They noted legislation provided little guidance on what constitutes a "better scheme overall," and the Department's assumption that employers would pay at least five days of sick leave in a twelve-month period is not explicitly supported by the law. The Adjudicating Officer noted the Respondent argued that their sick leave scheme was more favourable overall, but they attempted to compare benefits outside the twelve-month reference period specified in the Complainant's contract. Whereas the Complainant, having received no sick pay during the first 52 weeks of employment, was left worse off under the Respondent’s scheme compared to the statutory scheme. Lack of clarity in the legislation regarding minimum payments during the reference period led to a situation where the Respondent’s scheme did not meet the statutory requirements. As a result, they awarded the Complainant €1,000 in compensation, applying only to the sick leave scheme in place during the specified reference period of one to fifty-two weeks.
Practical Guidance for Employers:
Employers should note the Sick Leave Act 2022 and:
- Understand Entitlement Increases: The statutory sick leave entitlement increases over time. Ensure your policies reflect the current requirement of 5 days in 2024, and plan for future increases to 7 days in 2025 and 10 days in 2026.
- Ensure Compliance with Payment Rates: Pay employees 70% of their usual daily earnings, up to a maximum of €110 per day, for certified sick leave only. Review payroll systems to ensure accurate calculations.
- Eligibility and Certification: Verify that employees have completed 13 weeks of continuous service and require a medical certificate before granting statutory sick leave.
- Non-Discrimination: Protect employees from negative treatment or penalties for taking statutory sick leave. Ensure their absence does not impact their employment rights.
- Record-Keeping: Maintain detailed records of statutory sick leave for four years. Non-compliance can result in fines of up to €2,500.
- Review Current Sick Leave Policies: If your company’s existing sick leave scheme is more favourable than the statutory requirements, ensure it is clearly communicated to employees.
- Probation and Part-Time Employees: Apply statutory sick leave to all employees, including those on probation, training, or part-time work.
The full case can be found here:
https://www.workplacerelations.ie/en/cases/2024/august/adj-00050138.html
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