SLD262

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00052845 (CA-00064763-001)

BACKGROUND:

The Employer appealed the decision of the Adjudication Officer on 22nd April 2025 in accordance with Section 11 of the Sick Leave Act 2022.  A Labour Court hearing took place on 27th January 2026.  The following is the Decision of the Labour Court:-

DECISION:

1. Background to the Appeal

This is an appeal on behalf of SK Biotech Ireland Limited (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00052845/CA-00064763-001, dated 18 March 2025). Notice of Appeal was received in the Court on 22 April 2025. The Court heard the appeal in Dublin on 27 January 2026.

2. The Factual Background

Ms Shannon Reina (‘the Complainant’) was employed by the Respondent as a Quality Control Analyst between 14 August 2023 and 12 July 2024. Her gross annual salary as of the date of cessation of her employment was €38,960.00.

The Complainant was furnished with a written contract of employment that sets out at clause 15 details of the Respondent’s sick pay scheme. This provides in material part:

“The Company operates [a] sick pay scheme, the detailed terms of which are available from the Human Resources Department. After an initial qualifying period of six months’ service, the Company will pay your basic salary in full during any unavoidable absence from work due to sickness or accident, up to a maximum period of four weeks, during any 12 consecutive months provided the colleague complies in full with the Sick Pay scheme and completes their probationary period. Thereafter you may be eligible to receive 50% pay for a further 4 weeks, terms and conditions apply.”

The Complainant had six separate periods of sickness-related absence between 14 August 2023 and 18 December 2023, totalling 14 days’ certified absence and 3 days’ uncertified. The foregoing led to an investigation meeting under the Respondent’s Absence Management Policy in January 2024, a referral of the Complainant to Occupational Health and finally a disciplinary meeting on 18 January 2024. The Complainant received notice that a verbal warning was to be applied to her for breach of the Absence Management Policy. She appealed unsuccessfully from that decision. An appeal outcome letter issued to the Complainant confirming that the initial sanction was to remain in place.

The Complainant was absent from work from 13 to 17 May 2024. Following her return to work, the Complainant was invited to attend an investigation meeting pursuant to the Absence Management Policy on 27 May 2024. This meeting did not take place due to the Complainant’s further absence from work on sick leave between 23 and 31 May 2024. The Complainant returned to work on 12 June 2024 following periods of annual and compassionate leave. However, she then resigned her employment with effect from 12 July 2024.

3. The Cognisable Period

It is agreed between the Parties that the cognisable period for the within claim and appeal is 15 January 2024 and 14 July 2024, the Complainant’s original complaint form having been received by the Workplace Relations Commission on the latter date.

4. The Claim

The within appeal is, therefore, only concerned with the Complainant’s period of sick leave taken between 13 and 17 May 2024. The Respondent determined that as the Complainant had been found to be in breach of its Absence Management Policy, she was ineligible to benefit under its Sick Pay Scheme in respect of the foregoing period of sick leave.

5. The Law

Section 8 of the Act provides that where an employer provides a contractual sick leave scheme that is more favourable to an employee than the statutory scheme, the former “shall be in substitution for, and not in addition to, that entitlement”.

Section 9 of the Act provides for the non-application of certain obligations under the Act:

“(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.”

6. The Respondent’s Submission

It is the Respondent's submission that the Act does not apply to it in circumstances where it provides a sick pay scheme, the terms of which provides to its employees, “benefits that are, as a whole, more favourable to the employee than statutory sick leave”, over a reference period set out in the scheme. In making this submission, the Respondent relies, in particular, on section 9 of the Act.

Mr Ryan BL’s comprehensive submission to the Court provided a detailed comparison between the Respondent’s sick pay scheme and the statutory scheme. In circumstances where the Parties are ad idem that the former confers benefits that are, as a whole, more favourable to the employee than the latter, the Court has no need to consider this issue further.

Rather, the issue which the Court is required to determine arises from the non-application of the statutory scheme to the Complainant in circumstances where she was found not to have met the conditions of the Respondent’s scheme due to the extent of her sickness-related absence from the workplace.

Counsel submits that the determination of the foregoing turns on the proper interpretation of section 9 of the Act. The meaning ascribed to the term ‘sick leave scheme’ for the purposes of section 9 is:

“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.”

Counsel submits that the Respondent’s scheme is a ‘sick leave scheme’ within the meaning of section 9, being a scheme that provides for remuneration during a period of illness or accident etc set out in the Complainant’s contract of employment. He further submits that section 9 permits that an employer’s sick leave scheme may be subject to certain eligibility conditions. Finally, Counsel submits that the language of section 9(1) is mandatory and there is no discretion conferred on this Court under the section: “The obligations under this Act shall not apply to an employer ….”.

Based on the foregoing, Counsel urges the Court to find that, as the Respondent operates a sick leave scheme within the meaning of section 9 of the Act that, over a rolling twelve-month reference period, provides benefits that are, as a whole more favourable to the employee – albeit that it is a scheme subject to conditions – the requirements of section 5 of the Act, in particular, to pay statutory sick leave do not apply to the Respondent.

7. The Complainant’s Submission

The Complainant told the Court that she accepts the Respondent’s sick pay scheme is ‘on the whole’ more favourable than the statutory scheme. However, she submits that in circumstances where she became ineligible for the former due to the application of the Respondent’s Absence Management Policy, the statutory scheme should apply to her.

8. Discussion and Decision

The Court finds that the words used section 9(1) are clear and unambiguous and, therefore, should be ascribed their ordinary, plain meaning. Without doubt, the subsection has to be construed as relieving an employer of any obligation to pay statutory sick leave in circumstances where it has in place a scheme such as the Respondent has in place i.e. ‘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.’

Furthermore, it follows from the meaning ascribed to the term ‘sick leave scheme’ in section 9(3), that access to an employer’s sick leave scheme, for the purposes of section 9, can be subject to conditions.

The Complainant told the Court that she agrees with Counsel that the Respondent’s sick leave scheme confers more favourable benefits than the statutory sick leave scheme. She has not disputed that she did not meet the eligibility criteria of the Respondent’s scheme in May 2024 due to the extent of her illness-related absences from the workplace. Her claim is that, in circumstances where she became disentitled to benefit from her employer’s scheme, the Respondent was obliged to apply the terms of the statutory scheme to her.

The Court does not accept that the Complainant’s contention is consistent with the proper interpretation of section 9(1), as set out above. In short, the Court concludes that, as the Respondent’s sick leave scheme falls squarely within the parameters of section 9, the section absolutely exempts the Respondent from the obligation to apply the statutory sick leave scheme. The section admits of no exceptions to this exemption and does not confer any discretion on this Court to imply any such exception into it.

On the basis of the foregoing, the Court finds that the appeal succeeds and it sets aside the decision of the Adjudication Officer.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
CC	______________________
29 January 2026	Deputy Chairman

NOTE

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