SLD251

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00050138 (CA-00061487-001)

BACKGROUND:

The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 29 August 2024. 

A Labour Court hearing took place on 17 September 2025.

DECISION:

This is an appeal by Amcor Flexibles Sligo against Decision ADJ-00050138 of an Adjudication Officer in relation to a complaint by Ann Britton that they had acted contrary to the Sick Leave Act (the Act).

The Adjudication Officer held that the complaint was well-founded and awarded compensation of €1,000. The Court will refer to the parties as they were referred to at first instance Ms Briton being the Complainant and Amcor Flexibles Sligo Ltd the Respondent. The complaint was submitted to the WRC on 10 February 2024. The cognisable period for taking a complaint as determined by the Act is 11 August 2023 to 10 February 2024. The Complainant sent in a detailed submission covering a range of issues that were outside the scope of the Court in terms of its jurisdiction under the Act. At the start of the hearing the Complainant agreed to curtail her submission to the parts relevant to the Act.

1 Summary of the Complainant’s submission

 The Complainant commenced employment with the Respondent on 20 April 2023.  In January 2024 she became ill and submitted a medical certificate to cover her absence. It was her submission that in line with the Act she was entitled to five days of statutory sick pay at 70% of her regular earnings.

 She was informed by the Respondent that they had a sick pay scheme which employees could access after they completed one year service and therefore the statutory scheme did not apply to her. The Complainant submitted that the Respondent’s scheme is not better over-all than the statutory scheme as at the time of her absence she only became eligible after twelve months’ service, and the Respondent’s scheme applied a three-day waiting period. Under the statutory scheme employers are obliged to provide a paid sick leave after 13 weeks continuous service, a minimum number of days per year which was five at the relevant time, payment at 70% of daily wage capped at €110 per day.  The Complaint is seeking that her right to statutory sick pay during the relevant period is vindicated.

2 Summary of the Respondent’s submission 

The Respondent submitted that the obligation in the Act do not apply in this case because it provides its employees with a sick leave scheme which is as a whole, more favourable to the employee than statutory sick leave, as per section 9 of the Act.  The Complainant is in employment with the Respondent since 20 April 2023 and at the relevant time was paid €11.54 per hour plus shift allowance of 17.5%. She was contracted to work 38.5 hours a week.  The Complainant was absent on sick leave from the 2 January 2024 to 8 January 2024 returning to work on 9 January 2024. Under the Respondent’s sick leave scheme, the Complainant did not have the requisite service and therefore was not paid for the absence. In March 2024 following engagement with the Respondent’s Co-Worker committee the existing sick leave scheme was amended and now provides for five days sick pay after passing six-month probationary period and a reduced waiting period of two days. As a gesture of good will the Respondent offered to apply the terms of the revised scheme to the Complainant as she had six months’ service at the relevant time. The Complainant declined the offer.

 Section 5 of the Act sets out the entitlement to statutory sick pay. Section 7 sets out the prescribed rate to be paid. However, these sections must be read in conjunction with section 8 which provides for a contract of employment to include a sick pay scheme that is equal to or more favourable that the statutory scheme. It provides that such a scheme will be in substitution for the statutory scheme.  Section 9 sets out circumstances in which the Act shall not apply to an employer and the matters that should be taken into consideration when considering if the Respondent’s scheme as a whole is more favourable than statutory sick leave. The Respondent submitted that it accepts the  service requirement in its scheme at the relevant time and the number of days before eligibility for payment were less favourable that in the statutory scheme but in terms of the period for which sick leave is payable,  the amount of sick leave payable in terms of daily rate and the reference period, the Respondents scheme is more favourable.  The Respondent submitted that taking their scheme as a whole it was more favourable. The Respondent submitted that it has shown that its scheme as a whole is more favourable and therefore their appeal should be upheld.

3 The applicable law

 Statutory sick leave payment 7.

• (1) An employer shall pay an employee a prescribed daily rate of payment (in this Act referred to as “statutory sick leave payment”) in respect of each statutory sick leave day. (2) The Minister may make regulations, having regard to the matters specified in paragraphs (a) to (g) of section 6(1), for the purpose of prescribing the daily rate of statutory sick leave payment under subsection (1) which may— (a) specify the percentage rate of an employee’s pay, up to a maximum daily amount, at which statutory sick leave payment will be paid, (b) subject to the maximum daily amount specified in accordance with paragraph (a), specify an allowance in respect of board and lodgings, board only or lodgings only in a case in which such board or lodgings constitute part of the employee’s remuneration calculated at the prescribed rate, or (c) subject to the maximum daily amount specified in accordance with paragraph (a), specify basic pay and any pay in excess of basic pay in respect of shift work, piece work, unsocial hours worked or hours worked on a Sunday, allowances, emoluments, premium pay (or its equivalent), or any other payment as the Minister considers appropriate, that are to be taken into account in the calculation of statutory sick leave payment.

More favourable provision in contract of employment

8. (1) Nothing in this Act shall prevent the inclusion in a contract of employment of a provision that is— (a) as favourable to an employee as, or (b) more favourable to an employee than, an entitlement to statutory sick leave in accordance with this Act, and any such provision shall be in substitution for, and not in addition to, that entitlement. (2) Without prejudice to section 9, a provision in a contract of employment that is or becomes less favourable to an employee than a similar or corresponding entitlement of the employee under this Act shall be deemed to be so modified so as to be not less favourable. 7 Pt.2 [No. 24.] Sick Leave Act 2022. [2022.]

Non-application of obligations under Act

9. (1) The obligations under this Act shall not apply to an employer who provides his or her employees a sick leave scheme where the terms of the scheme confer, over the course of a reference period set out in the scheme, benefits that are, as a whole, more favourable to the employee than statutory sick leave. (2) In determining, for the purposes of subsection (1), whether a sick leave scheme confers benefits that are, as a whole, more favourable than statutory sick leave, the following matters shall 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. (3) In this section— “collective agreement” means an agreement by or on behalf of an employer on the one hand, and by or on behalf of a body or bodies representative of the employees to whom the agreement relates on the other hand; “enactment” has the same meaning as it has in the Interpretation Act 2005; “recognised trade union or staff association” means a body which is a holder of a negotiation licence under the Trade Union Act 1941, or is an excepted body within the meaning of that Act which is sufficiently representative of the employees concerned; “sick leave scheme” means a scheme that provides for the payment of remuneration that an employee will be entitled to receive during a period of illness or injury according to the circumstances and subject to the conditions of the scheme under— (a) a contract of employment, (b) an enactment, (c) a collective agreement negotiated with a recognised trade union or staff association, or (d) any individual or other group arrangement.

4 Discussion

 The Court notes that outside of the cognisable period the Respondent amended their sick pay scheme and offered to apply the more favourable terms retrospectively to her absence, but the Complainant declines the offer. The Court in considering this complaint has to look at what was in place at the time and compare the benefits of the statutory scheme at that time, to the benefits of the contractual scheme.

Section 9 sets out that the comparison is to be done “, over the course of a reference period set out in the scheme,”. The Respondent confirmed that the reference period in their scheme is a 12-month period commencing on the first day of sick leave. In this case that was 2 January 2024 the reference period in the statutory scheme is also a 12-month period.

 Section 9 sets out what the Court should take into consideration when considering if benefits of a sick leave scheme are as a whole more favourable than the statutory scheme.

Cognisable period for the claim is 11 August 2023 to 10 February 2024.

The reference period in this case is January to December 2024.

Dates of absence are 2 January 2024 to 8 January 2024 inclusive.

At the relevant time the Complainant had nine months’ service

5 Determination 

 The Court having applied the terms of the Act to the circumstances of this case, finds that in the reference period the Respondents scheme as a whole did not confer more favourable benefits than the statutory scheme. The Court determines that the Complainant was entitled to be paid statutory sick pay and awards compensation of €1,000.

The appeal fails.  The decision of the Adjudication officer is upheld.

	Signed on behalf of the Labour Court
	Louise O'Donnell
CC	______________________
4 November 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Ceola Cronin, Court Secretary.