Complainant

Respondent

Parties

Lee  Peate

Musgrave Marketplace

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

  Self-represented

Des Ryan, BL

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022

CA-00071738-001

20/05/2025

The Complainant was employed as a Driver with the Respondent paid €39,730 (gross) per annum. They had been employed from the 02/09/2024 to the 15/05/2025 and were unwell during the employment and absent for surgery on the 16-23 April 2025.

A dispute has arisen as to the payment of sick pay in line with the legislation.

The Complainant sets out that the Respondent has failed to provide him with statutory sick pay as per section 5 of the Sick Leave Act 2022.

The Respondent defends this complaint in full and submits that the obligations under the Act do not apply to the Respondent because it provides its employees with a sick leave scheme which is more favourable to the employee than statutory sick leave, as per section 9 of the Act.

The Complainant had a serious operation and was signed off work for 5 days.

On enquiring as to being paid sick leave he was informed by the Respondent HR Department that the Respondent was not obligated to pay statutory sick pay because they have a sick scheme.

In order to avail of that scheme, the Complainant must be employed with the company for 1 year before they could access the scheme.

As the Complainant had not the required service under the Respondent scheme, he was informed he would not qualify for sick pay for the period.

Subsequently, he was informed by the Dept of Social Protection (DSP) that the Respondent was required to pay him the sick leave and that the Dept scheme commences only after five days, leaving him without pay for the period.

The Complainant sets out that he made attempts to resolve the matter have been ignored by the Respondent. They also confirmed to him that they do not have to pay his sick leave.

The Complainant has provided evidence of correspondence from the DSP and from the Hospital

The Respondent does not dispute the facts of the Complainant being denied the leave and the fact of the Respondent Sick Leave Scheme requiring 12 months service before access for the Complainant. The Respondent forth that the issue in this case comes down to an interpretation of s9 of the Act.

The Respondent Sick Scheme

The Sick Scheme in place sets out that the Complainant, after 12 months, has the benefit of the following:

Eligibility

• Applies to employees with at least 1 year of service.
• Part-time employees included on a pro-rata basis

Uncertified Illness

• Company pays for first two instances (within 12 months) of 1–2 days’ sickness.
• Subject to management discretion and non-abuse.

Certified Illness (Doctor’s Certificate Required)

• Full-time employees after 12 months service:
  • 4 weeks’ full pay (less Social Welfare).
  • Plus 1 extra week per additional year of service, up to 12 weeks max.

Conditions

• Medical certificate required after first two days of sickness.
• Employees must claim Social Welfare and surrender payment to company.
• After entitlement is exhausted, employee must return to work for 12 months to restore entitlement.

Legal Submissions

The Respondent refers to section 5 of the Act and sets out that the phrase “subject to this Act” is significant because the Act contains an explicit exemption in section 9, which allows employers with sick pay schemes that are, overall, more favourable than the statutory scheme to be excluded from the statutory requirements.

Referring to section 7(1) the Respondent sets out that this requires an employer to pay an employee a prescribed daily rate for each statutory sick leave day. Under the 2022 Regulations (SI No. 607/2022), where an employee is paid based on a fixed hourly rate for set weekly hours, the daily sick leave payment must be the lower of €110 or 70% of the employee’s normal daily pay, calculated by reference to the last day the employee worked before taking statutory sick leave.

Referring to section 8 the Respondent sets out that this section allows an employment contract to include sick leave terms that are equally favourable to, or more favourable than, the statutory sick leave entitlements. Where such contractual terms exist, they replace—rather than add to—the statutory sick leave entitlement.

The Respondent refers to section 9 of the Act that where an employer is exempt from the obligations of the Sick Leave Act 2022, an employer does not have to apply the statutory scheme if they already operate a sick leave scheme that, overall, provides more favourable benefits than the statutory entitlements.

Factors for Considering Schemes

It is set out by the Respondent that in assessing whether a scheme is “more favourable as a whole”, five factors must be considered:

1. Service required before sick leave is payable.
2. Waiting days before payment begins.
3. Duration of paid sick leave.
4. Amount of sick leave pay.
5. Reference period of the scheme.

Section 9

Importantly, section 9 also defines key terms, including collective agreement, recognised trade union or staff association, and sick leave scheme, which may arise under a contract, legislation, collective agreement, or any other individual/group arrangement. This sets out the legislative basis for the payment and crucially it also sets out the derogation for an employer with a more favourable sick leave scheme, and such schemes are a “substitution” to the statutory scheme.

Legal Question

The Respondent sets out that the legal question to be answered is in all the circumstances if the scheme is superior to the statutory scheme. The Respondent submits that this is the case when all the factors already set at “Factors for Considering Schemes”.

The period of service on an employee that is required before sick leave is payable

The Respondent sets out that the Respondent scheme is superior in all factors with the limited exception of the requirement to have “1 year’s continuous service”. 

The Respondent argues that “this is an entirely different question to the question of whether the Respondent’s sick pay scheme is “as a whole more favourable” in accordance with the Act”.

The number of days that an employee is absent before sick leave is payable

The Respondent sets out that statutory sick pay must be paid from the first eligible sick day each year under s.5(4) of the Act.

The Respondent’s sick leave scheme is more favourable because it pays employees for the first two instances of 1–2 days’ uncertified illness within a 12‑month period. For longer or repeated absences, a medical certificate is required from day three, after which the employee receives basic pay (less social welfare) for four weeks, plus an extra week per additional year of service, up to a 12‑week maximum, pro‑rated for part‑time staff. Importantly, the scheme has no waiting days, meaning payment begins immediately. Sick leave is payable from the first day of illness.

The Respondent’s argues that the Respondent sick leave scheme is therefore as favourable as statutory sick leave

The period for which sick leave is payable

The Act entitles an employee to 5 days of statutory sick leave per year.

By contrast, the Respondent’s sick leave scheme gives, within a 12‑month period, two instances of up to two days’ uncertified sick leave, plus at least four weeks of paid certified sick leave, increasing by one week per additional year of service, up to a maximum of 12 weeks.

This amounts to a minimum of 20 paid sick days and up to 60 days for employees with nine or more years’ service.

The Respondent argues that this significant difference should strongly support a finding that its scheme is, overall and as a whole, more favourable than the statutory entitlement.

The amount of sick leave that is payable

Under the Act and its Regulations, an employee paid an hourly wage for fixed weekly hours is entitled to the lower of €110 or 70% of their normal daily pay. Based on the Complainant’s daily net pay of €93.72, the statutory entitlement would be €65.60 per statutory sick leave day.

By contrast, under the Respondent’s scheme, part‑time employees receive basic pay minus social welfare, with payment based on rostered hours for the first week and average hours over the previous 12 months thereafter.

This results in a level of payment well above the 70% rate required by the Act.

Accordingly, the Respondent submits that its scheme is more favourable than the statutory sick pay entitlement.

The reference period of the sick leave scheme

The Respondent sets out that the Act does not expressly define a reference period, but it effectively operates on a yearly basis because section 5(2) provides for five statutory sick leave days per year.

The Respondent’s scheme also operates on a 12‑month reference period, offering two instances of up to two days’ uncertified sick leave and between 4 and 12 weeks of certified paid sick leave, depending on service.

As both frameworks use the same reference period, the Respondent submits that its scheme is equally favourable in this respect.

Statutory Interpretation

The Respondent submits and emphasises a key point of statutory interpretation: unlike other employment rights legislation (such as the Employment Equality Acts), which apply universally but allow employers to rely on a defence like objective justification, the Sick Leave Act 2022 contains a fundamentally different structure.

Section 9 explicitly provides that the obligations of the Act do not apply at all to employers who operate a sick pay scheme that is, as a whole, more favourable.

Therefore, if the Respondent’s scheme meets the section 9 threshold, the Act’s obligations are disapplied entirely, removing the basis for any claim or redress under the Act.

On this reasoning, the Respondent argues that the issue is one of jurisdiction: if section 9 applies, an Adjudication Officer has no power to grant any remedy to the Complainant.

Further Non-Statutory Considerations: Industrial Relations

The Respondent sets out that, in addition to the statutory factors the Respondent that the Adjudicator must consider when assessing whether the Respondent’s scheme is more favourable than the Act, they submit that other relevant matters may also properly inform that assessment.

The Respondent’s sick leave scheme is the product of collective bargaining, agreed with employees and their trade union representatives. It is argued that the Workplace Relations Commission should, where possible, support and respect such collectively agreed arrangements.

A finding that the Act’s statutory provisions are more favourable than the scheme would risk undermining established industrial relations, potentially requiring the Respondent to renegotiate a new scheme aligned with the Act. Such renegotiation would likely compel the Respondent to make significant reductions—such as shortening the duration of paid sick leave, lowering the rate of pay, or adopting other cost‑saving measures—to accommodate the cost of the first three statutory sick leave days.

It is submitted by the Respondent that employees and their union should retain the freedom to determine what constitutes a more favourable scheme for themselves, and that overriding their collectively agreed sick leave arrangements would disregard this autonomy.

Overall Conclusions from All Considerations

The Respondent submits that the only respect in which the Act is more advantageous than the Respondent’s scheme concerns the service requirement before sick leave becomes payable. While the Complainant met the Act’s threshold of 13 weeks’ continuous service, he did not yet have the one year’s service needed to qualify under the Respondent’s scheme.

However, the Respondent submits that this single point cannot be determinative. Section 9(2)(a) expressly identifies the required period of service as one of the factors to be considered when assessing whether an employer’s sick leave scheme is, as a whole, more favourable than statutory sick leave. The Act therefore anticipates and accepts that an employee may not yet qualify for benefits under an employer’s scheme, while the scheme may still be overall more favourable than the statutory entitlement.

Accordingly, the fact that the Complainant personally did not meet the service requirement does not, on its own, render the Respondent’s scheme less favourable. When all the relevant considerations are weighed, the Respondent submits that its scheme remains, overall, more favourable within the meaning of section 9

The Respondent relies on Nolan v Emo Oil Ltd [2009] 20 ELR 122, where Laffoy J held that the courts cannot expand the common law in a way that would run parallel to—or undermine—the statutory regime created by the Oireachtas. Nolan emphasised that unfair dismissal legislation contains specific remedies, specific procedures, and designated forums for obtaining those remedies. Allowing a parallel common‑law route would improperly supplant the statutory code.

The Respondent refers to a key authority underpinning Nolan was the House of Lords decision in Johnson v Unisys Ltd [2001] UKHL 13, where Lord Millett noted that Parliament had deliberately chosen to introduce qualifying periods of service, “thereby excluding certain categories of employees from its scope altogether.” Even though some employees were intentionally left outside the statutory protections, this provided no basis for the courts to fill that gap or override the legislative scheme.

The Respondent submits that the same reasoning applies to the Sick Leave Act 2022. The Oireachtas intentionally created a statutory regime that does not apply at all to employers who operate a sick leave scheme that is, as a whole, more favourable under section 9. Just as in Nolan and Johnson, adjudicators should not reinterpret or extend the statutory framework in a way that overrides the clear legislative choice.

It is argued that these authorities therefore provide additional, compelling support for the Respondent’s position that the complaint cannot succeed under the 2022 Act. Additionally, it is submitted that the Adjudication Officer should, as a matter of policy, find the Respondent’s sick leave scheme is more favourable in circumstances where it is collectively bargained and agreed between the Respondent and its employees through their recognised trade unions.

Conclusions

The Respondent set out that it has shown that its sick leave scheme is ‘as a whole, more favourable’ than the provisions of the Act. As a result, the Act can have no application to the Respondent and it is not obliged to provide payment for statutory sick leave under section 5, due to the provisions set out in section 9.

It is therefore respectfully submitted that the Adjudication Officer should dismiss the claim before the Workplace Relations Commission as not well founded.

1.       There is little in the complaint that is contentious between the parties other than the favourability of the Respondent scheme over the statutory scheme. It is clearly true that the Complainant has access to the statutory scheme by reason of service and has no access to the Respondent scheme for want of service.

2.       The Respondent argues, rightly, that a derogation exists for employers who offer a more favourable scheme taking all of the set factors into account.

3.       The Respondent has set out the scheme of the employer in this and it many areas it is more favourable with the admitted question around the qualifying period of 12 months. The Respondent asserts, in the whole, that this is a lesser matter and it should be noted that the legislation does not set out a weighting in the considerations of each of the factors.

4.       As set out by the Respondent the Act allows for an equally favourable or more favourable scheme locally and where this is the case it is a replacement and not an addition.

5.       S9 allows a derogation where the scheme is “more favourable as a whole” and the five factors are:

1.       Service required before sick leave is payable.

2.       Waiting days before payment begins.

3.       Duration of paid sick leave.

4.       Amount of sick leave pay.

5.       Reference period of the scheme.

6.       I cannot enumerate weight to each of the factors, and numbers two to five are argued as being definitively more favourable than the Act. The Respondent admits that there is a discrepancy on factor one, which it has argued as being overshadowed by the benefits of the rest. However, I am not inclined to agree where factor one is the gateway to the rest, and my opinion is that this requires more weight than the other four, given its gatekeeping role and in the present case, a long period of twelve months.

7.       In considering factor one it is necessary to take into account the impact on the employee. The Complainant is not highly paid and the impact of being without income during this time would obviously take a greater toll on them than if they were a higher paid staff member.

8.       The Respondent argues that point one cannot be determinative where section 9 identifies it as one of the factors. However, it is the most significant factor, and it cannot on its own stop the Complainant from access to his statutory rights. It might be useful in setting such a qualifying period to determine its length to demonstrate its impact on the employees where it may not meet the needs for which the Oireachtas brought the Act into being.

9.       It is not appropriate for me to specify what period is acceptable in these circumstances. It is, however,  clear to me that a shorter qualifying period could be enough to negate the gatekeeping effect of factor one. What that period is must be considered in light of the bargain struck between the parties.

10.   The Respondent refers to Nolan v Emo Oil Ltd [2009] 20 ELR 122 and sets out that a Court cannot expand the common law to undermine the statutory regime created by the Oireachtas. I have been invited to consider if any decision favourable to the Complainant would undermine the Oireachtas thus. The Judgement in Nolan referred to the matter of the Unfair Dismissals Act and that it was forbidden for an expansion on the remedies and redress in that. I don’t believe in finding the complaint in this case well founded would do this, but rather would bring to life the provisions of the Act.

Similarly, in referring to this, attention is drawn to the UK case that informed the decision in Nolan, that of Johnson v Unisys Ltd [2001] UKHL 13 where the decision of Parliament to impose time restrictions that would exclude some employees and exclude others.  It is true that this is the case in terms of the Unfair Dismissals Act and other employment legislation, but in this case the legislation sets out 13 weeks to avail of the Act, which the Complainant meets.

11.   It is accepted that the Act cannot by virtue of its derogations be applicable to all employees. However, as set out elsewhere in this document those who are to be excluded from the benefits of the legislation have to be considered by the criteria set. This is a qualitative exercise rather than a quantitative one and it is not as simple as the starting and stopping of a clock.

12.   The 12-month qualifying period in the Respondent scheme does not have the weight of legislation and whilst it is true that the Respondent may impose such a thing, it must be considered in light of the factors set out. In reviewing all of the factors it cannot be said that the Respondent scheme, where there is twelve month waiting period, is on the whole, more favourable, where it denies the Complainant access to the rights set out for them by the Oireachtas and at such a vulnerable time.   

Industrial Relations Considerations

13.   It is set out in defence of the Respondent that for policy reasons this complaint must fail, that it will have a bearing on collective negotiations and undermine the scheme as it is. It was set forth that that the Respondent scheme was the product of negotiations with the recognised trade union.

14.   The Respondent scheme was negotiated in 2015, seven years prior to the Act, with the recognised trade union. The scheme was updated by the Respondent in 2019, three years prior to the Act in circumstances, related in evidence, that the Union did not respond at all according to the Respondent witness and the submissions.

15.   If there is collective bargaining in place and the matter requires negotiation, or renegotiation, that is a voluntary matter for the parties. Such parties being free to determine the contents of an agreement to this scheme, but they still must happen within the applicable legislation and cannot lessen the terms of the Act.

16.   While it is clear that the Respondent has attempted to engage with the relevant trade union, there has been no comments and or responses on the record. This makes me question the validity of that union and its engagement locally. I cannot conclude from the submissions that there has been a collective agreement on this issue.  In coming to this conclusion I note at page 8 of the contract of employment the following:

“29. Union

The company will negotiate terms with you only. No negotiations on your behalf will be conducted through third parties; be they trade union representatives or other bodies. There are no collective agreements that relate to your employment.”

17.   Whilst the policy argument can have some weight, the case referred is an employment rights complaint and not a collective industrial relations dispute. I am also not convinced from the evidence and the submissions that there is a properly negotiated agreement in place and clearly, the Complainant has explicitly been told that there is not as per their contract of employment.

18.   In any event, I find no merit in the argument that an individual can sign away their statutory rights on their own, nor with the intervention of a third party. The statutory rights act as a floor, and although the 2022 Act will allow it in under section 9, it has to be, on the whole, for a more favourable scheme. Undoubtedly, after twelve months of employment the scheme will be far more favourable, but the intervening period of nine months between the two creates an intolerable gap.

19.   For all the reasons set out above I do not find that the Respondent scheme meets the section 9 threshold. I must also reject the submission that the sick leave scheme is ‘as a whole, more favourable’ than the provisions of the Act, where the waiting period is twelve months and this denies an employee access to the provisions of the 2022 Act. I can, therefore, declare that there are no jurisdictional issues as argued by the Respondent

20.   For the reasons set out, I direct the Respondent to pay the Complainant in accordance with the 2022 Act at a minimum rate of the lower of €110 or 70% of the employee’s normal daily pay calculated by reference to the last day the employee worked before taking statutory sick leave.

For the reasons set out, I find the complaint to be well-founded and direct the Respondent to pay the Complainant, for the absence,  in accordance with the 2022 Act at a minimum rate of the lower of €110 or 70% of the employee’s normal daily pay calculated by reference to the last day the employee worked before taking statutory sick leave.

Derogation Assessment, Qualifying Service Requirements, Comparative Favourability of Schemes, Statutory Rights vs. Employer Schemes,