Ireland: First WRC Decision Under the New Statutory Sick Pay Legislation

The Sick Leave Act 2022 (the “Act”) has been in force since 1 January 2023. Under the Act, employees are entitled to three days of paid sick leave per year. This entitlement is set to increase to five days on 1 January 2024. Under the statutory sick pay (“SSP”) scheme, employees are entitled to 70% of their typical pay, up to a maximum of €110 per day.  Employees must have 13 weeks’ continuous service with their employer to avail of SSP and must provide their employer with a medical certificate from a general practitioner.

In the recent case of Katerina Leszczynska v. Musgrave Operating Partners, the WRC examined, for the first time, an employer’s obligation to pay SSP and the circumstances in which a company’s sick pay scheme is exempt from the obligation to pay SSP.

In this particular case, the complainant, who was an employee of the respondent, was absent from work for four consecutive days. The respondent had a sick pay scheme that applied after an employee had six months of service. Under the respondent’s scheme, employees were entitled to 40 days of paid sick leave, which activated on the fourth day of sick leave. The complainant argued that, as a result of this, the employer’s scheme was less favourable than SSP.  The respondent employer argued that it was exempt from the statutory obligation to pay SSP in circumstances where its sick pay scheme was a more favourable scheme.

In examining whether or not the respondent employer was exempt from the obligation to pay SSP, the WRC considered the following factors under the Act as to whether the company sick pay scheme was, as a whole, more favourable, than SSP:

• the period of service of an employee before sick leave is payable;
• the number of days that an employee is absent 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

After examining each of the above factors, the WRC ultimately concluded that the company’s sick pay scheme was, on the whole, more favourable than SSP.  In particular, the WRC found that the application of a three-day waiting period was consistent with the conditions attached to the payment of Illness Benefit by the State, the logical purpose being to discourage short intermittent absences. The WRC also indicated that, “There can be no arguing that eight weeks’ paid sick leave is more beneficial than three days and pay at 100% of wages is more beneficial than 70%.”

This decision will be of interest to employers for the purposes of assessing whether their company’s sick pay schemes are, as a whole, more favourable than SSP and, in particular, assessing how the WRC has regard to the factors outlined above. Further litigation teasing out those factors will no doubt appear in due course, and this is an area that employers should keep under review.