Under the Sick Leave Act, 2022 (2022 Act) all employers in Ireland are obliged to make mandatory sick payments to their staff. Under the 2022 Act, employees were entitled to three sick days in 2023 and as of 1st January 2024, this has risen to five days. This entitlement will eventually rise to seven days in 2025 and 10 days in 2026. In order to qualify for sick pay under the 2022 Act, an employee must have 13 weeks service with their employer and provide a medical certificate from a GP vouching for their inability to attend work. If the employee meets these conditions, they will be entitled to 70% of their typical wage up to a €110 maximum per day.
Under section 9 (1) the 2022 Act, if an employer has a sick leave policy in place, where the “benefits that are, as a whole, more favourable to the employee” the employer is not required to adjust their sick leave policy on foot of the 2022 Act.
Certain employers however have a wait time from when employees begin sick leave to when they would begin to be paid. Ambiguity remained with how this would be applied under the 2022 Act and how the Workplace Relations Commission (WRC) would interpret section 9(1) of the 2022 Act.
Katerina Leszczynska v Musgrave Operating Partners
The recent decision in the case of Katerina Leszczynska v Musgrave Operating Partners has brought clarity to the interpretation of section 9 (1) of the 2022 Act.
In this case, the claimant had been employed as a shop assistant with the respondent since 2007 and was absent from work for a period of four consecutive days in January 2023. The complainant brought a complaint to the WRC on the grounds that she was being discriminated against for being a hard-working employee who was rarely out on sick leave.
Under the respondent’s sick leave policy, employees were entitled to eight weeks fully paid sick leave subject to the following conditions:
- Employees must have 6 months service;
- Payment of the sick leave commences on the fourth day of absence and as such, there is a three-day “waiting period”; and
- Employees must submit sufficient medical certificates weekly.
The claimant argued that as a result, this scheme was less favourable than the statutory sick pay she would be entitled to under the 2022 Act and therefore the respondent was in breach of the 2022 Act.
While acknowledging that the statutory sick pay was more favourable in some respects, the respondent argued that its scheme was, on the whole, more favourable than the statutory sick leave provided for under the 2022 Act and argued the fact that the respondent’s scheme was a result of collective bargaining with its recognised trade unions, of which the complainant was a member.
The primary issue in this case was the three-day waiting period and the fact that the complainant was not eligible for payment under the respondent’s sick pay scheme until the fourth day of absence.
The Adjudication Officer noted in their findings stated that “the application of a waiting period of three days is consistent with the same condition attached to the payment of illness Benefit by the Department of Social Protection”.
The Adjudication Officer went on to find that the lack of pay for the first three days of sick leave was outweighed by the overall length of the sick pay scheme and the fact that the complainant was also entitled to eight weeks of sick pay at 100% of her wages rather than the three days of sick pay at 70% of her typical wages, as provided for under the 2022 Act.
As the respondent’s sick pay scheme had been drafted as a result of a collective bargaining between the employees and their recognised trade unions, the Adjudication Officer also commented that if they were to find that the provisions of the 2022 Act were more favourable than the respondent’s sick leave scheme, “this would de-stabilise industrial relations… and would result in a requirement to re-negotiate a new scheme”.
For these reasons the WRC decided that the complaint was not well founded.
The ruling by the WRC in this case provided clarity on the question of how section 9(1) of the 2022 Act would be interpreted and provides useful guidance on what employers should consider when drafting their sick pay scheme.
Employers should consider whether they need to make any adjustments to their sick pay policies and take steps to plan for the new five-day entitlement from January 2024.