Statutory sick pay was found to be due where the employer’s sick pay scheme excluded a newer employee and was not more favourable as a whole under the Sick Leave Act 2022.

The Complainant was employed as a driver from September 2024 to May 2025 on a gross annual salary of €39,730. He underwent a serious operation and was certified unfit for work for five days mid-April 2025. He maintained that the Respondent failed to pay him statutory sick pay in accordance with section 5 of the Sick Leave Act 2022. When he queried payment, HR informed him that the Respondent was not obliged to pay statutory sick pay because it operated a sick pay scheme. The Complainant said he could not access that scheme because it required one year’s service, which he did not have. He stated that the Department of Social Protection (DSP) advised him that the employer should pay the first five sick days and that DSP illness benefit only commenced after that period, leaving him without income for the absence. He claimed he attempted to resolve the matter, but his efforts were ignored.

The Respondent accepted that the Complainant was not paid for the relevant sick leave period and that he did not qualify for the Respondent’s sick pay scheme due to the twelve-month service requirement. It submitted that the dispute turned entirely on the operation of section 9 of the Sick Leave Act 2022. The Respondent argued that its contractual sick pay scheme was “as a whole more favourable” than statutory sick leave and therefore displaced the statutory entitlement. It relied on the statutory factors for comparing schemes, emphasising that its scheme provided immediate payment from the first day of illness, paid two short uncertified absences per year, and provided a minimum of four weeks’ paid certified sick leave after one year’s service, increasing with service up to twelve weeks. It contended that the statutory scheme provided only five days per year at a capped percentage of normal pay. The Respondent also argued that its scheme was collectively bargained and that applying statutory sick pay would undermine established industrial relations arrangements.

The Adjudicating Officer found that the central issue was whether the Respondent’s scheme met the section 9 threshold of being “more favourable as a whole” when assessed against the statutory factors. While the Respondent’s scheme was more favourable on factors relating to waiting days, duration, amount of pay, and the reference period, the Adjudicator placed particular weight on the service requirement as a “gateway” factor. The twelve-month qualifying period operated to exclude the Complainant entirely, notwithstanding that he met the Act’s 13-week service threshold and was sick at a vulnerable time. The Adjudicator held that this “intolerable gap” meant the scheme could not be regarded as more favourable overall for the purposes of section 9 and rejected the jurisdictional argument. Industrial relations submissions were not accepted, particularly where the contract stated there were no collective agreements. The complaint was upheld and the Respondent was directed to pay statutory sick pay at the applicable rate.

Employers should carefully review existing sick pay schemes to ensure they genuinely meet the “more favourable as a whole” test under the Sick Leave Act 2022. Particular attention should be paid to qualifying service periods, as lengthy waiting times may operate as a barrier that defeats statutory protections. Even generous schemes can fail if employees are left without income at critical times. Employers should assess schemes from the perspective of lower-paid or newer employees and document how each statutory factor is satisfied. Where schemes predate the Act, a review and amendment may be necessary.

The full case can be found here.