18 Nov Statutory Sick Pay

The WRC recently issued a decision in the case of Katerina Leszczynska v Musgrave Operating Partners , in which it reviewed the matter of the obligation of an employer to pay SSP, when they have in place a more generous scheme than the statutory entitlement to sick pay.

Under the Sick Leave Act 2022 an employer may be exempt from paying SSP, if they provide sick pay benefits that on the whole over the course of a reference period, are more favourable that SSP, which currently provides 3 days sick pay in a 12 month period, at the rate of 70% of pay (capped at 100%), and provided that a medical certificate has been submitted.

The claimant worked in a Supervalu shop and was absent for four consecutive days, but under their sick pay scheme which provided for eight weeks sick pay at full pay, was not entitled to be paid for the first three days of a period of abence. The claimant therefore was only paid for the fourth day of her absence and claimed that she should have been paid for the first three days, and that the terms of her employer’s scheme were therefore less favourable than SSP.

The WRC reviewed the following factors as provided for in the Sick Leave Act, to determine if the employer was exempt from paying SSP, on the basis that their scheme was on the whole more favourable:

1. The service requirement before sick pay is payable

2. The waiting period before sick leave is payable

3. The length of time for which sick leave is payable

4. The amount of sick leave payable

5. The reference period of the sick pay scheme

In this case, the Supervalu scheme had a 26 week service requirement, which was greater than the 13 weeks for SSP, but it was noted that the majority of employees had over 26 weeks service and the 8 weeks sick pay benefit in the scheme compensated for this.

The Ajudication Offier took the same view on the three day waiting period and said the eight weeks sick pay benefit outweighed the waiting days requirement, as well as noting that eigtht weeks at full pay was clearly more beneficial that three days at 70% of pay (capped at €110 per day).

There was no difference in the reference period of the scheme and SSP.

There was also an assertion made by the employer that the sick pay scheme had been agreed by trade union collective bargaining and that it should therefore not be intefered with.

The Adjudication Officer determined that on the whole the Supervalu sick pay scheme provided benefits that were more favourable than SSP and the claimant was not successful in her complaint in respect of the 3 day waiting period.

“I have considered the employer’s scheme and I have compared its benefits with those of the Sick Leave Act.  It is my view that the duration of paid sick leave in the employer’s scheme, the amount of sick pay, the 26 weeks’ service requirement and the three-day waiting period combine to provide benefits that, on the whole, are more favourable to employees than the benefits provided in the Act.

In summary, while the complainant’s case is not unreasonable, and her claim raises an important legal point, I find that the respondent’s scheme is encompassed by section 9(1) of the Act and that its benefits are, as a whole, more favourable to the employee than statutory sick leave.”

Whilst a helpful decision, it is however the first case under the sick pay legislation and future cases will no doubt provide further clarification on how the 5 factors will be assessed to decide if an employer’s scheme is more favourable.