Antoinette Vahey, Partner with Ronan Daly Jermyn considers this question:

“An employee who has been on sick leave for the past 22 weeks has tendered his resignation. We are calculating his accrued annual leave entitlement in accordance with the working time legislation however are wondering what to do with public holidays that occurred during that timeframe. He was in receipt of full sick pay for the duration of his sick leave so I assume that his entitlement to those public holidays is discharged. How do I handle it?”

Employees on long term sick leave accrue an entitlement to public holidays in the first 26 weeks of certified absence, where it concerns a non–occupational injury, and 52 weeks where it concerns an occupational injury. Otherwise, an employee must have worked at least 40 hours in the five weeks prior to the public holiday arising, to accrue an entitlement to the public holiday in question.

Having regard to the instant query, the employee, therefore, has an entitlement to the public holidays which have arisen during his absence. Although it is reasonable for the employer to assume that, as he was paid for these days during his absence, that his entitlement to public holidays is discharged. However, unfortunately the position regarding payment for public holidays is not that simple. This issue has been before the Labour Court on a number of occasions and the view of the Court has consistently been that a public holiday entitlement is separate and distinct from a paid sick leave day and cannot “subsume the employee's statutory entitlement in respect of the public holiday”.

In Thermo King and Pat Kenny DWT 0611, the issue in dispute were three public holidays, which fell during the employee’s certified sick leave. The Court determined that the payments received by the employee, on the days in question, were sick leave payments as part of his entitlement to sick pay. In those circumstances, the Court determined that these payments did not discharge the Company’s statutory obligation to the employee in respect of the public holidays in question.

In the case of An Post and Glenn King DWT 072, the employee maintained that he was entitled to the benefit of two public holidays, which fell while he was on certified sick leave. Management held that as he was paid in full for the days in question that his entitlement was discharged and that his contractual rights were inclusive of statutory rights and not additional to them. However, the Court determined that these payments, given that they arose under the employer’s sick pay scheme, could not discharge the employer’s statutory obligation to the employee in respect of the public holidays in question.

The situation was slightly different in the case of Leitrim County Council and Alan Martin DWT 0914. In this case, the public holidays in question were paid by the employer as public holidays rather than sick leave at the time they accrued, as per the employer’s policy. The employer then credited those days back to the employee under its sick pay scheme. The employee however sought a determination from the Labour Court that the leave should be classified as sick leave and that his entitlement with respect to the public holidays could be claimed at a later date.

In its determination, the Labour Court was satisfied that the employee had received his statutory entitlement to the payment of the public holidays and that the employer had discharged its obligations under the legislation. It was also satisfied that his contractual entitlements under the sick pay scheme was maintained.

In the case of HSE West and Fiona Dermody DWT 1144 the Labour Court considered the above cases and determined that the clear import of section 21 of the Organisation of Working Time Act 1997, is that where an employee is contractually entitled to a paid day off on a day which is a public holiday, the granting of that day off with pay cannot subsume the employee’s statutory entitlement in respect of the public holiday.

In this case, the employer paid the days in question as public holidays instead of sick leave. The employee maintained that they should have been paid as sick leave as she had a contractual entitlement to a day’s pay in respect of every day on which she was certified as unfit for work due to illness. The employer indicated that it had the ability to determine whether to pay for the public holiday or to pay a day’s sick pay under their sick pay scheme, in circumstances where that scheme was discretionary.

The Labour Court considered the terms of the employer’s sick pay scheme and noted the provision “every day occurring within a continuous period of sick leave shall be reckoned as part of such leave”. The Court was therefore satisfied that the meaning ascribed to this provision was very clear and that the three days which the employee had been paid as public holiday pay, should have been payment of continuous sick pay. In those circumstances, the Court determined that the employee had a statutory entitlement for the three public holidays that arose during her absence.

In all of the circumstances, payment for public holidays must be carefully considered by employers, particularly when dealing with employees on long term sick leave. An employer must firstly determine whether the employee has an entitlement to the public holidays(s) in question. Where there is an entitlement, then the employer should decide whether it is paid at the time of accrual or is paid as an extra days pay at a later date. As is evident from the case law above, it is also important to consider the terms of any sick pay scheme so that the employer’s position as regards payment of public holidays during sick leave is clearly specified, and does not give rise to confusion or conflict.