SSP will be increasing to 5 days entitlement from January 1st 2024.
Summary of entitlement
Under the Act all employers became obliged to make mandatory sick payments to their staff. The Act allows exceptions for companies who have more favorable sick pay policies. These employers are not required to adjust their policies.
To avail of statutory sick pay, an employee must have worked with their employer for at least 13 weeks and must provide their employer with medical certification from a medical practitioner stating they are unable to work. Once those criteria are met the employee would be entitled to 70% of their typical wage up to a €110 maximum per day.
The sick pay year is the calendar year, so it runs from 1 January to 31 December. Any unused Statutory Sick Pay expires at the end of the calendar year. The statutory sick leave days may be taken consecutively or separately.
Case law
The first decision under the Act has now been heard and released and is the case of Katerina Leszczynska (Employee) v Musgrave Operating Partners (Company) . The principal consideration of this case was whether the Company’s sick pay scheme conferred benefits that were as favourable or more favourable than the Sick Leave Act 2022.
Facts of the case:
- Employee was employed since 2007
- Employee was absent for four consecutive days in January 2023
- Under the Company’s sick pay scheme, the employee was entitled to 40 days sick leave, but this only activated on the 4th day of sick leave, meaning the company did not pay for the first three days of sickness absence. In this case the company paid for one day of this absence
- The employee claimed she was entitled to payment for first 3 days of sick leave and argued that the company scheme was less favourable than the Statutory Sick Pay under the 2022 Act
- The company argued that the their scheme as a whole, is more favourable than statutory sick leave and that the scheme was a result of collective bargaining with its recognised Trade Unions, of which the Complainant was a member
The WRC looked at the below factors to determine if a company’s sick pay scheme is more favourable:
- The length of service of an employee that is required before sick leave is payable
- The number of days that an employee is absent before sick leave is payable
- The number of days for which sick leave is payable
- The amount of sick leave that is payable
- The reference period of the sick leave scheme
The Adjudicator determined that the benefits discussed under the company sick pay scheme, were as a whole more favourable than the Statutory Sick Pay and stated “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”. Further details of this case can be found here https://workplacerelations.ie/en/cases/2023/september/adj-00044889.html
This is the first WRC decision on the Sick Leave Act 2022 and has provided some much-awaited clarity, however it is important that we await further decisions to better understand consistency of the decision-making.
Policy Review
For employers whom, to date, did not apply the statutory sick pay scheme in 2023, as they operated a more favourable company sick pay scheme, they may need to review this again to make sure that on the whole, their scheme continues to be more favourable.
