Michelle Ryan

Employers and employment practitioners have eagerly awaited a first decision under the new Sick Leave Act 2022 which has been in force since January 2023. The decision in the recent case of Katerina Leszczynska v Musgrave Operating Partners has become that long awaited case.

Under the new Act all employers in Ireland became obliged to make mandatory sick payments to their staff. Employees are currently entitled to three sick days per year, rising to five days in 2024, seven days in 2025 and 10 days in 2026. Employees need to have 13 weeks’ service with their employer and provide a medical certificate from a GP vouching for their inability to attend work. Once those criteria are met, the employee would be entitled to 70 per cent of their typical wage up to a €110 maximum per day.

The 2022 Act made allowances for employers who had existing sick pay policies which were more generous than the provisions of the Act, meaning such employers were not required to adjust their policies on foot of the Act. Certain employers however have a wait time from when employees began sick leave to when they would begin to be paid. Ambiguity remained with how this allowance would be applied and how the WRC would interpret these allowances.

Facts

The claimant Ms Leszczynska had been employed as a shop assistant with the respondent since 2007, originally under Superquinn prior to the 2011 buyout by Musgrave Group. In January 2023 the claimant was absent from work for four consecutive days.

Under the respondent’s sick pay scheme, the claimant was entitled to 40 days’ sick leave, but this only activates on the fourth day of sick leave. The claimant contended that as a result, this scheme was less favourable than the statutory sick pay under the 2022 Act and thus a breach of same.

Arguments

The complainant argued that she felt she was being discriminated against for being a hard-working employee who was seldom out sick. She made further reference to the wording of section 8(1) of the 2022 Act, noting that the terms of the Act were more favourable to her so should therefore apply.

Des Ryan BL, representing the respondent, argued that the respondent’s scheme granted benefits which were, as a whole, more favourable than statutory sick leave and argued the fact that the respondent’s scheme was a result of collective bargaining with its recognised trade unions, of which the complainant was a member. Mr Ryan argued that the Act had no application to the respondent.

WRC findings

The WRC in consideration of the arguments of both parties firstly noted the three-day waiting period under the respondent’s internal policy. The adjudicator in their findings stated “the application of a waiting period of three days is consistent with the same condition attached to the payment of illness Benefit by the Department of Social Protection”. They further qualified this by highlighting: “It is not my function here to investigate the genesis of this three-day waiting period.”

The adjudicator was also of the opinion that the lack of pay for the first three days was outweighed by the overall length of the sick pay scheme and the fact employees would then be entitled to eight weeks of sick pay rather than the three days provided under the 2022 Act. For these reasons the WRC decided that the complaint was not well founded.

Implications

This ruling by the WRC settles a very important legal question on how section 9(1) of the 2022 Act would be interpreted. As further case law builds on this mater going forward a clearer picture will emerge on how the WRC will judge the comparison of benefits under S.9(2).

It may well also be the case that as the number of statutory days increase through to 2026 the employers may be wise to adjust their own policies accordingly to ensure they remain more beneficial “as a whole” and retain their section 9(1) exemption under the Act.

• Michelle Ryan is a partner in the employment team at RDJ LLP.