In Alan Lehane v Sean Ahern Ltd ADJ-00051505, the Workplace Relations Commission (“WRC”) found that an employer’s sick pay scheme was more favourable overall than entitlements provided for under the Sick Leave Act 2022 (“the Act”),notwithstanding that the Complainant had been disadvantaged by a waiting period under the employer’s sick pay scheme.

Facts:

The Complainant’s case was that he was an employee of the Respondent from August 2021 to February 2024. He claimed that in January 2024, he was absent from work for three consecutive days. The Complainant submitted that he had noticed that his next payslip did not reflect payment for these absences, as he had anticipated given the Respondent participated in the Construction Worker’s Pension Scheme (“CWPS”) and followed the CWPS sick pay scheme (“CWPS scheme”). The Complainant claimed that he queried this with his employer, who informed him that the CWPS scheme did not provide sick pay until a fourth day of absence. The Complainant contended that he should have received pay for his absences through the statutory sick pay scheme (“SSP”) instead, as it would entitle him to be paid from the first day of absence. It was the Complainant’s submission that the SSP was the more favourable of the two schemes and highlighted that the CWPS scheme’s three-day waiting period meant that he may never claim the benefit of sick pay due to potentially only ever being absent for short periods of time.

It was the Respondent’s submission that the Industrial Relations Sub Committee of the CWPS conducted a comparison exercise between the CWPS scheme and SSP. The Respondent contended that the result of that exercise was a recommendation that the CWPS scheme substitute the SSP, in accordance with section 9 of the Act as it is more favourable to employees. The Respondent further submitted that the WRC’s decision in Karolina Leszczynska v Musgrave Operating Partners Ireland (“the Musgrave case”) supported this substitution.

Decision:

The Adjudicating Officer stated that the Act is intended to confer a benefit on employees who have no contractual entitlement to paid sick leave. The SSP at that time provided five days sick pay over a twelve-month period, at a rate of 70% normal pay up to a maximum of €110, whichever the lesser. In line with section 8(1) of the Act, an employer may provide a sick pay scheme that is as favourable or more favourable to its employees than the SSP, and “…any such provision shall be in substitution for, and not in addition to that entitlement”.

Section 9 of the Act states that an employer shall not be obliged to provide SSP “where the terms of the scheme confer, over the course of a reference period set out in the scheme, benefits that are, as a whole, more favourable to the employee than statutory sick leave.”

Although the Adjudicating Officer recognised that the three-day wait period under the CWPS scheme put the Complainant at a disadvantage whereby he was not entitled to receive any sick pay until his fourth day of absence, the Adjudicating Officer was satisfied that the CWPS scheme was, on the whole, a more favourable scheme compared to that under the 2022 Act. The Respondent demonstrated that the CWPS scheme allowed for payment of 50 days sick pay per annum, which was accepted as being more favourable than the SSP allowance. The Adjudicating Officer noted that the benefits conferred by the CWPS scheme outweighed the disadvantage the Complainant faced.

Takeaway for Employers:

This decision is an interesting development on recent caselaw on the Sick Leave Act 2022. This decision appears to follow the rationale of the Musgrave case, which determined that the benefits of a company’s sick pay scheme will be considered as a whole and compared with the overall benefits of the SSP. Our readers will note the contrast between these decisions and Ann Britton v Amcor Flexibles Ltd, in which it was decided that a company sick pay scheme was, as a whole, less favourable than the SSP, having regard to the disadvantage faced by the Complainant as an employee with less than twelve months service (links to our previous articles on these case are below).

These cases highlight the importance of evaluating company sick leave policies on a regular basis to ensure that they do not fall short of the SSP allowance.

Link – Alan Lehane v Sean Ahern Ltd

WRC Examines First Case Under Sick Leave Act 2022

WRC Finds that Company Sick Pay Scheme less favourable overall than the Statutory Sick Pay Scheme

Authors – Lia Berkery & Laura Killelea

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