Karolina Leszczynska

Musgrave Operating Partners Ireland

The Sick Leave Act 2022 (the Act) provides employees in Ireland with a right to statutory sick pay (SSP). Section 8 of the Act permits an employer to substitute a more favourable sick pay scheme for the terms of the statutory sick leave provided by Section 5.

The claimant was a shop assistant at a Supervalu branch operated by the respondent. She was absent due to illness for four consecutive days in 2023 and claimed entitlement to SSP for the first three days. The respondent’s sick pay scheme provided for eight weeks fully paid sick leave. However, the first three days of absence are considered ‘waiting days’ and are not paid. The claimant was therefore only paid in respect of one day of her absence. 
 
The claimant argued the terms of the respondent’s scheme were less favourable to her than SSP. The respondent maintained it was exempt from the obligation to pay SSP on the basis its scheme was a more favourable scheme.

The WRC noted that employees are entitled to SSP after 13 weeks’ service. Under the respondent’s scheme, employees required 26 weeks’ service. However, the WRC considered that in this case, the complainant and 89% of the respondent’s employees had more than six month’s service. The Adjudication Officer (AO) commented that this is a relevant factor when determining if ‘on the whole’ an employer’s scheme is more favourable than the SSP. The AO also commented that the eight weeks’ sick pay entitlement under the respondent’s scheme outweighed the requirement to have six months’ service compared to 13 weeks’ service for SSP.

The WRC acknowledged the ‘waiting days’ created a disadvantage for an employee who was absent for a maximum of three days in a 12-month period. However, the AO was of the view that the disadvantage was outweighed by the fact that the respondent provided sick pay for up to eight weeks in 12 months after three days absence.

The AO was of the view that eight weeks’ paid sick leave was more beneficial than three days SSP. Furthermore, pay at 100% was more beneficial that 70% capped at €110. 

The WRC ultimately held that the respondent’s scheme provided benefits that, overall, were more favourable to the complainant than SSP. As a result, the complainant’s claim in respect of SSP was not successful.

In determining whether a company sick pay scheme is ‘as a whole’ more favourable than the SSP scheme, the WRC will critically analyse the evidence adduced by the parties in support of their respective arguments as to why a company scheme is/is not more favourable. 

SSP will gradually increase over time (up to ten days in 2026). As this entitlement increases, employers will need to assess on an ongoing basis whether their company scheme remains more favourable than SSP.