In this case (ADJ-00044889), Ms Karolina Leszczynska (the “Claimant”) had been employed by Musgrave Operating Partners Ireland (the “Respondent”) in its Supervalu store since 2007. During her employment, the Claimant went out on sick leave and a dispute arose.
The Respondent operated a paid sick leave scheme which entitled its employees to up to 8 weeks of sick leave on full pay once they had more than 6 month's service. Under the company's scheme, the first 3 days of leave were deemed "waiting days" and were unpaid. The Claimant went on sick leave for a period of 4 days, for which she only received 1 days' pay.
She then took a WRC claim on the basis that she was entitled to 3 days paid sick leave under the new statutory sick pay scheme per the Sick Leave Act 2022 (2022 Act).
The Respondent's case was that the Act permits an employer to use its own sick pay scheme as a substitute for the statutory scheme if it provides more favourable sick leave terms.
The following matters need to be taken into consideration when determining if an employer’s scheme is more favourable:
(a) the period of service of an employee that is required before sick leave is payable;
(b) the number of days that an employee is absent before sick leave is payable;
(c) the period for which sick leave is payable;
(d) the amount of sick leave that is payable;
(e) the reference period of the sick leave scheme.
The Respondent submitted that in all but one of the above aspects (point b), its own sick pay scheme was more favourable than the statutory sick pay scheme.
The Adjudicator stated that the primary issue was whether the "waiting days" condition in the Respondents scheme made the scheme less favourable "as a whole" than the statutory scheme. The Adjudicator noted that a waiting period is also attached to the payment of Illness Benefit by the Department of Social Protection and that such a measure, aimed at discouraging intermittent absences, is a reasonable one.
The Adjudicator concluded that the disadvantage caused by the waiting period in the Respondent's scheme was outweighed by the advantages of the scheme.
The Respondent's scheme gave its employees full pay as opposed to 70% pay as per the statutory scheme. Further, the Respondent's scheme covered a longer period than the statutory scheme.
This led the Adjudicator to conclude that the Respondent's scheme could be substituted for the statutory scheme.
This decision acts as a helpful clarification for employers in respect of whether a company sick pay scheme may or may not likely be more favourable than the statutory sick pay scheme. When comparing the two schemes, regard should be had to the criteria set out in the legislation.
Crucially, even if certain elements of the company scheme are less favourable than the statutory sick pay scheme, the overall benefit granted by the company sick pay scheme might still be more favourable.
This document is for general guidance only and not intended as professional advice. Advice should always be taken before acting on any of the issues identified.
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