The Sick Leave Act 2022 (the “2022 Act”) has been in force since 1 January 2023 and provides employees with a statutory entitlement to sick pay in Ireland. Employees are entitled to 3 days paid sick leave, with this period set to rise incrementally over the coming years, increasing to 5 paid sick leave days from 1 January 2024, and culminating at 10 paid sick leave days by 2026. This statutory allowance is payable at 70% of the employee’s basic salary up to a maximum of €110.00 per day. For more information on the 2022 Act, please CLICK HERE.
In the first decision regarding the 2022 Act (Katerina Leszczynska v Musgrave Operating Partners), the Workplace Relations Commission (WRC) has provided welcome clarity on the ability for an employer to substitute their statutory responsibilities under the 2022 Act, provided the provisions regarding sick pay which are contained in the contract of employment are more favourable to the employee than those set out by statute.
Background & Facts
Ms. Katerina Leszczynska (the “Complainant”), was employed as a shop assistant by Musgraves Operating Partners Ireland (the “Respondent”). In 2023, the Complainant was absent from work for four consecutive days and claimed entitlement to statutory sick pay for the first three days. Under the Respondent’s sick pay scheme, the Complainant was entitled to 40 days sick leave, however, there was a 3-day waiting period before this scheme activated. The basis of the Complainant’s argument was that she was being denied her statutory entitlement for paid sick leave as a result of this 3-day waiting period.
Desmond Ryan BL, who appeared as counsel for the Respondent, argued that when read as a whole, the benefits granted under the Complainant’s contract of employment were more favourable than those benefits she would receive by virtue of statute. Section 9 of the 2022 Act provides that the provisions of the Act will not apply to an employee who receives more beneficial contractual sick pay from their employer.
An interesting aspect of the Respondent’s argument was that the more favourable sick pay scheme advanced by the Respondent came as a result of collective bargaining with its recognised Trade Union, of which the Complainant was a part. Counsel for the Respondent further submitted that it was in fact a policy objective of the WRC to facilitate instances of collective bargaining, and as such finding in favour of the Complainant in this matter would stymie progress made in furtherance of this objective.
Decision of the WRC
The WRC analysed the differences between the 2022 Act and the contract of employment. In deciding whether the employer’s scheme was as a whole, more favourable than the statutory sick pay scheme, the WRC had regard to:
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- Period of service required before sick leave is payable
- The number of days of absence before sick leave is payable
- The length of time for which sick leave is payable
- The amount of sick leave payable
- The reference period of the sick pay scheme
On consideration of the above criteria with reference to the Complainant’s contract of employment with the Respondent, the WRC was fully satisfied the contractual sick leave provisions were wholly more favourable than those under statute. Further the WRC did not find the 3-day waiting period to be unreasonable, noting it was consistent with the waiting period for illness benefit provided by the Department of Social Protection. The WRC was of the view that, despite the waiting period, the 40 days sick pay offered by the Respondent was evidently more favourable than the provisions set out in statute.
Implications for Employers
The decision provides welcome clarity on how Section 9 of the 2022 Act is to be interpreted. This will guide employers on what aspects of the sick pay scheme within their contract of employment the WRC will have specific regard to, with the aforementioned criteria being of key insight. This will further allow employers to amend and strengthen any existing sick pay policies, ensuring such schemes are of the requisite standard.
How we can help
If you have any queries or concerns, or would like to discuss the above in further detail, please feel free to contact Kate Walsh, solicitor, in the Employment & Benefits Department of BHSM LLP on 01 440 8300 / kwalsh@bhsm.ie.
This article is for general information purposes. Legal advice must be obtained for individual circumstances. Whilst every effort has been made to ensure the accuracy of this article, no liability is accepted by the author for any inaccuracies.