First WRC Decision under Sick Pay Act
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.
Facts
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).
Defence
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.
WRC Decision
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.
Conclusion
This decision acts as a helpful clarification for employers in respect of whether a company sick pay scheme may or may not 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.
New Year, New Sick Pay Rules!
It's a new year and with that brings the enactment of the new Sick Pay Scheme. Ireland is one of few advanced economies in Europe without a mandatory sick leave entitlement and this new scheme now brings Ireland in line with other European countries that have mandatory paid sick leave for workers in place. Under the legislation, employers are now obliged to provide a minimum number of paid sick days annually from 2023.
Statutory sick pay provides for the entitlement of an employee to be paid a statutory sick leave payment by his or her employer in respect of a temporary absence from work due to illness, subject to medical certification from a registered medical practitioner. In the past, employees had no legal right to be paid while on sick leave from work, however since the 1st of January 2023 sick pay will be paid by employers at a rate of 70% of an employee’s wage, subject to a daily maximum threshold of €110.
To avail of statutory sick pay an employee must obtain a medical certificate and the entitlement is subject to the employee having worked for their employer for a minimum of 13 weeks. In all EU countries, medical certification of some form is a requirement to receive sick pay. However, there is some variation around the timing and frequency of when medical certification is needed.
Once an employees entitlement to sick pay from their employer comes to an end, if employees need to take more time off then they may qualify for illness benefit from the Department of Social Protection (DSP) subject to PRSI contributions. The scheme covers all workers and no waiting days are to apply (waiting days are the unpaid days in the event of illness).
What is the new Statutory Sick Pay scheme (SSP)?
The entitlement to paid sick leave is being phased in over 4 years:
2023 - 3 days covered
2024 - 5 days covered
2025 - 7 days covered
2026 - 10 days covered
Sick days can be taken as consecutive days or non-consecutive days. The sick pay year is the calendar year and therefore runs from 1 January to 31 December.
The first day in a year that an employee is incapable of working due to illness or injury shall be the employee’s first statutory sick leave day, and any subsequent statutory sick leave days shall be construed accordingly.
Employers can have a more generous sick pay scheme in place however they cannot give an employee less than the statutory amount. In determining whether a sick leave scheme confers benefits that are, as a whole, more favourable than statutory sick leave, the following matters are to be taken into consideration:
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.
Section 10 of the Sick Leave Bill provides for an exemption from the obligation for employers to pay the statutory sick leave payment where the employer is deemed unable to pay sick leave by the Labour Court. The exemption is for a period not exceeding one year and not less than 3 months, and while it remains in force the employer accordingly need not so comply.
Sick Pay Records
Records must be retained by the employer concerned for a period of 4 years and must include:
a) the period of employment of each employee who availed of statutory sick leave,
b) the dates and times of statutory sick leave in respect of each employee who availed of such
leave, and
c) the rate of statutory sick leave payment in relation to each employee who availed of
statutory sick leave.
You can watch our most recent webinar “2022 Legislation Changes” where our expert Jennifer discusses the legislation. For further information please see the Sick leave Bill 2022.
SSP to come into effect in January 2023
According to Tánaiste Leo Varadkar, the statutory sick pay scheme will go into effect on 1 January 2023. As per our previous blog post the Sick Leave Act will establish an entitlement for all employees to sick leave paid by their employer in addition to illness benefits from the state.
Workers will be entitled to three days of paid sick leave in the first year of operation, increasing to five days in year two, seven days in year three, and ten days in year four. Employers will pay sick pay at a rate of 70% of an employee's wage, up to a daily maximum of €110. The law was passed in July but it will not take effect until the new year.
What actions should employers take now?
if your employment contracts already include paid sick leave provisions, you’ll need to review the agreements in line with the new legislation.
An employer who offers a sick leave scheme to employees with more favourable conditions than the terms of the statutory scheme is not subject to additional obligations under the Act.
You can watch our most recent webinar “2022 Legislation Changes” where our expert Jennifer discusses the legislation or read our previous blog post: Preparing for New Sick Pay Rules
Effective Absence Management
One of your employees calling in sick or saying they can’t make it into work but not giving a reason as to why can be frustrating and disruptive.
The best thing to do to manage this is to have an absence policy in place. The policy should outline how sickness-related-absences will be dealt with and should specify what period of time forms:
• Short-term absence
• Long-term absence
• Unauthorized absence
Your absence policy should be shared with your employees. Doing this will ensure that employees know how each instance of absence will be handled and what procedure will be followed.
Furthermore, having an absence policy in place will ensure consistency.
How to reduce sickness absence in the workplace
Return to work interview
One of the easiest ways to reduce sickness absence is to conduct a return to work interview. This conversation will bring to light any issues an employee has, whether it’s personal work or work-related. It could mean that you alter their working hours, allow them to work from home, or take time off for medical appointments.
Record Keeping
Record keeping is another useful practice. Tracking employee absences can be very beneficial to see what patterns may appear with the absence of an employee. For example, does one of your employees always miss the Friday of a Bank Holiday? Or say they’re unwell the Monday they’re due in after a week off?
Monitoring absences will make these patterns easier to spot and gives you proof if you need to speak to the employee.
Communication
Whether it’s a short or long-term absence, it’s important that you reach out to the absent individual. You can do so by phone, email, and in some cases, a home visit. Reaching out, it will give you an insight into their illness and how long they think they will be absent. It will also help you prepare for their return.
Dismissal due to sickness absence
In extreme cases, such as long-term sickness, dismissal for absence may be considered.
If you decided to go down the dismissal route, you’ll need to show that the procedure used was fair and reasonable. Failure to follow fair procedures may leave your company open to a claim for unfair dismissal.
Bright Contracts Handbook contains an absence policy in the “Terms & Conditions” section of the handbook.
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New Worker’s rights passed by the Oireachtas
Over the last few weeks, The Oireachtas has approved two new workers’ rights: sick pay and tip protection. Both of these will have a significant impact on millions of workers nationwide.
Sick Pay for eligible employees
As discussed in a previous blog post: Preparing for New Sick Pay Rules. The Sick Leave Bill 2022 has been passed by both Houses of the Oireachtas. This gives eligible employees in Ireland the right to paid sick leave. Employers will pay sick pay at a rate of 70% of an employee's wage, up to a daily maximum of €110.
To receive statutory sick pay, an employee must obtain a medical certificate and have worked for their employer for a minimum of 13 weeks. Employees who require further time off after their employer’s entitlement to sick pay expires may be eligible for illness benefits from the Department of Social Protection, subject to PRSI contributions. The Bill has now been signed into law by the president.
The Payment of Wages (Amendment) (Tips and Gratuities) Bill
In addition to passing the Sick Leave Bill 2022, the Oireachtas passed new legislation to ensure those working in the hospitality industry receive their fair share of tips and gratuities. This will clarify the definitions of required charges, service charges, tips, and gratuities. In addition, it will exclude tips and gratuities from a worker’s contractual wages, and oblige employers to distribute tips received electronically, fairly, equitably, and in a transparent manner. It will also ensure that any charge referred to as a ‘service charge’ is distributed to employees in the same way as tips received.
Employers should begin reviewing their sick leave policies to ensure that they comply with the upcoming statutory sick leave scheme. Employers in relevant industries should also review their policies and procedures for managing tips, gratuities, and service charges to ensure they are in line with the changes in the law.
Preparing for New Sick Pay Rules
Until now, Irish employers have not been obliged to pay employees during sick leave. The new legislation changes that.
The new statutory sick pay rules are due to come into effect imminently in Ireland. Irish employment contracts may provide for a limited period of sick pay, but this has always been at the discretion of the employer. If employers chose not to provide this, affected employees must apply for state-sponsored illness benefits subject to PRSI contributions.
This is now going to change. The obligation to pay an employee sick leave will now be on the employer.
What are the changes?
Under the new regime employees will have an entitlement to three days of paid sick leave this year. This is then due to go up to five next year, seven in 2024 and ten in 2025. The increases will be made by way of ministerial order each year. Factors including the state of the economy generally must be considered by the minister when making their decision.
The draft bill does not specify the amount of statutory sick pay. It simply states that an employer must pay a prescribed daily rate for a statutory sick leave payment. The intention of the government is to place a cap on the amount of statutory sick leave. It has been suggested that an employer will only be obliged to pay up to 70% of wages subject to a cap of €110 a day.
Employees will need to have at least 13 weeks of continuous service before they are eligible for statutory sick pay. It’s important to note that employees will be obliged to furnish a medical certificate in respect of each day of statutory sick leave.
If an employer already provides more favourable sick leave benefits to an employee, they will not be obliged to comply with the statutory sick pay rules. However, the employer will have to demonstrate that any discretionary or pre-existing scheme is more favourable than the one provided in the legislation.
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Look What's Coming: Statutory Sick Pay for 2022
Look What's Coming: Statutory Sick Pay for 2022
With 2021 drawing to a close businesses must now look forward as to what is to come in 2022 and one change that is likely yo come in 2022 which will affect all employers is the introduction of a compulsory sick pay scheme.
Unlike many European jurisdictions, Ireland has never had a scheme like this. Currently an Irish employer is not, at the moment, obliged to pay employees while they are sick which is about to change due to the Sick Leave Bill 2021 which was published recently and provides for a comprehensive Statutory Sick Pay scheme (SSP).
The key points for employers to note in relation to this scheme are as follows:
1. While the number of eligible days per year will start at a low level, the Government intends that this will increase to two working weeks by the year 2025.
2. SSP will be capped and an employer will only be obliged to pay up to 70% of wages, subject to a cap of €110/day.
3. The Government will not “top up” the employer’s contribution to 100%.
4. Employees will have to have at least 13 weeks of continuous service in order to be eligible.
5. Employees will be obliged to provide a medical certificate in respect of each day of Statutory Sick Leave.
6. If an employer maintains it cannot afford to discharge its SSP obligations, an exemption can be granted by the Labour Court.
7. If an employer already provides more favourable sick leave benefits to an employee, they will not be obliged to comply with the SSP rules.
So what should employers do now? It would be prudent for employers , especially smaller employers, to start financial planning now in order to ensure that they are ready for when the SSP is introduced. Employers should also review any existing sick pay schemes/ policies to check whether the new rules will affect/ change these.
Related Articles:
- The Budget 2022: What You Need to Know
- The importance of having an Absence/Sick Leave Policy
4 Reasons why contracts of employment are needed
We’ve heard all the excuses before; “I’m too busy and don’t have the time”, “It’s too expensive to implement contracts”, or “I only have four employees, I don’t need to provide employment contracts”. If you are an employer you are obliged to provide your employees with a written statement of terms of employment.
We have compiled the 4 most important reasons why contracts of employment are needed.
It is a legal requirement
Under the Terms of Employment (Information) Acts 1994-2014, as an employer you must provide a written contract of employment to a new staff member no later than 2 months after their commencement. Employers must also provide employees with written disciplinary procedures, and procedures that the employer will follow when dismissing an employee, within 28 days of the employee starting. These procedures may be included in the employment contract or in the company handbook.
Protect your business against costly disputes
Having contracts of employment in place offers your business protection in the case of a dispute. A dispute can escalate to the WRC, where not having clearly documented terms of employment can really leave you wide open as an employer. If you are found not to have contracts of employment in place for your staff you will face a fine of 4 weeks’ pay per employee. In the case of a dispute, employers could face fines equating to two years remuneration - the maximum compensation award.
Protect your company against WRC inspections
Approximately 5,000 workplace inspections are carried out by the WRC every year, with 60% of them being unannounced. During a WRC inspection, the first thing they will ask to see is a copy of your contracts of employment. In 2016, 62% of employers failed to keep adequate employment records. Inspectors may issue on the spot fines for amounts up to €2,000 where they have reasonable cause to believe that a person has committed a relevant offence.
Instills confidence in you and your employees
In terms of the employer/employee relationship, the contract of employment is the most important thing you’ll ever deal with. It is the foundation stone of the employer/employee relationship. Having contracts of employment in place will clarify certain conditions for you and your employee so that both parties are aware of what is expected of them. Having contracts in place will also instill confidence in you, knowing that you are doing everything you can do to protect yourself and your business in any situation that may arise.
It is never too late to put contracts of employment in place. Read our blog “How can I introduce contracts to existing employees?” and follow our 4 simple steps here.
To book a free online demo of Bright Contracts click here
To download your free Bright Contracts trial click here
The importance of having an Absence/Sick Leave Policy
As an employer, it can be quite a daunting prospect having to deal with sick leave and long-term sick leave can throw up other issues making it seem more complicated and even more daunting for the employer to deal with effectively. So how can an employer ensure compliance during these periods of absence?
First and foremost an Absence/Sick Leave Policy needs to be put in place. It must contain clear and concise guidelines for the employee and employer to follow in cases of absence
Your Absence Policy should include:
1. Details of any company Sick Pay Policy:
- If an employer will/will not pay employee while on certified/uncertified sick leave.
- If payments are to be made, length of term for payments.
2. Notification and certification requirements if employees are absent due to illness:
- How much notice an employee needs to give an employer if they will be absent from work.
- After how many days of absence a medical certificate is required.
- For long-term absences, how often a medical certificate is required to be presented to the employer.
3. A statement that in the case of long-term absence due to illness, the employee may be required to attend a company GP or other nominated medical persons/facilities at the request of the employer.
It would also be advisable to include details on what is classed as being short-term, long-term and unauthorised absences - Unauthorised leave is absence by the employee without consent or approval from management or without proof of illness by means of a doctors certificate and should be dealt with as a matter of misconduct via the company disciplinary procedures.
As with most company policies and procedures, once in place, the employees will be aware of what is expected of them during times of absence or sick leave; this, in turn, should eliminate any further issues from arising.
Bright Contracts has a comprehensive Absence and Sick Leave Policy built into the Company Handbook which can be customised to suit your own company specifications and requirements.
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€10K awarded to steeple worker who was told to “wing it” with no harness
The Workplace Relations Commissioner has awarded €10k to a worker for unfair dismissal when he was dismissed after suffering a back injury while carrying out work on a scaffold in with no safety equipment.
The complainant’s role was to make digital prints and then fit the products to buildings or vehicles. If the job required two people, then the complainant was accompanied by the respondent otherwise he went on his own.
In September of 2015 while working on site in Belfast he was “required to work at heights without a harness”. He said he was also told to operate a cherry picker even though he did not hold a license to do so. The court also heard that later in the month the complainant was previously told to ‘wing it’ when doing installation work on a church steeple with no harness.
In November 2015 the complainant injured his back while working on a scaffold with no safety harness and was on certified sick leave for 9 days. He said that while he was on sick leave he saw his job being advertised, the ad was later removed when he raised concerns with his boss.
In July 2016 while back on site, the complainant said he left a job he believed to be a health and safety risk when he was asked to work at a height of 15m without a harness. He later made a formal complaint to his employer but left 15 minutes into the meeting for being verbally abused for not completing the job. The complainant said he was constructively dismissed and had not worked since.
Finding
The officer who heard the case said that she found the complaint was “well founded” based on the uncontested evidence. The respondent didn’t attend the hearing. She directed the respondent to pay the worker €10,000 within 42 days of the ruling.
Learning Points
There are many things to take away from this case, first and foremost that the health and safety of an employee under no circumstance should ever be compromised. This case highlights the importance for employers in all industry's to carry out their own risk assessments. Employers should also note the importance of not only having a clear grievance and dispute procedures for staff to reference but for the employer to follow them correctly.
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