Employer Sick Leave

Table of Contents

Right to Statutory Sick Leave

An employee shall, in respect of a day on which he or she would ordinarily work but is incapable of doing so due to illness or injury be entitled to statutory sick leave.

An employee shall be entitled to up to and including 3 statutory sick leave days in a year, or such number of statutory sick leave days as may stand specified from time to time by order of the Minister. Statutory sick leave days may be consecutive days or non-consecutive days.

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.

Entitlement Begin & End

An employee’s entitlement to a statutory sick leave day shall not commence before a time when he or she has completed 13 weeks continuous service with his or her employer.

Where an employee ceases to be the employee of an employer and, not more than 26 weeks after the date of cessation, the employee again becomes the employee of the employer, the period of service of that employee with that employer before the date of cesser shall be deemed to be continuous with the period of service of that employee with that employer after again becoming such employee.

Qualifying Conditions

An employee shall be entitled to statutory sick leave payment from his or her employer in accordance with the below conditions in respect of each statutory sick leave day.

An employee shall, in respect of a statutory sick leave day, provide his or her employer with a medical certificate in an official language of the State signed by a registered medical practitioner stating that the employee named in the certificate is unable to work.

Variation of Number of Days

The Minister may, following consultation with the Minister for Social Protection, by order specify such number of statutory sick leave days as he or she considers appropriate having regard to:

the state of the economy generally, the business environment and national competitiveness;
the state of society generally, the public interest and employee well-being;
the potential impact, including the potential for any disproportionate or other adverse impact, that the making of an order will have on the economy generally, specific sectors of the economy, employers or employees;
annual and quarterly data on earnings and labour costs as published by the Central Statistics Office;
expert opinion, research, national or international reports that the Minister considers relevant;
the views of employer representative bodies and trade unions;
such other matters as the Minister considers relevant.

An order shall not reduce the number of statutory sick leave days. An order shall not increase by more than 3 the number of statutory sick leave days provided for immediately before the making of the order.

Statutory Sick Leave Payment

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.

The Minister may make regulations for the purpose of prescribing the daily rate of statutory sick leave payment which may—

specify the percentage rate of an employee’s pay, up to a maximum daily amount, at which statutory sick leave payment will be paid,
subject to the maximum daily amount specified, 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
subject to the maximum daily amount specified 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

A contract of employment may make a provision that is as favourable to an employee as, or more favourable to an employee than, an entitlement to statutory sick leave.

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.

Non-Application of Act Obligations

The obligations do 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.

In determining, 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:

the period of service of an employee that is required before sick leave is payable;
the number of days that an employee is absent before sick leave is payable;
the period for which sick leave is payable;
the amount of sick leave that is payable;
the reference period of the sick leave scheme.

A “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 contract of employment,
an enactment,
a collective agreement negotiated with a recognised trade union or staff association, or
any individual or other group arrangement.

Exemption Application

The Labour Court may exempt an employer from the obligation to pay an employee or number of employees statutory sick leave payment otherwise payable to them. An exemption shall be 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.

An employer or employer’s representative with the employer’s consent may, in the manner and form approved by the Labour Court, apply to the Labour Court for an exemption.

On receiving an application the Labour Court shall convene a hearing of parties to the application and shall give its decision on the application in writing to the parties. The Labour Court shall not grant an exemption unless it is satisfied that—

the employer’s business is experiencing severe financial difficulties.
where the employer makes an application, and that employer employs more than one employee, he or she has entered into an agreement with—
the majority of the employees,
the representative of the majority of the employees, or
a trade union representing the majority of the employees,

in respect of whom the exemption is sought, whereby the employees, the representative of the employees or the trade union, consents to the employer making the application, and to abide by any decision on the application that the Court may make, and

Exemption Grant

Where the Labour Court is not satisfied that the majority of the employees or their representative consents to an application, the Labour Court may grant an exemption, provided the Labour Court is satisfied that—

the employer has informed the employees concerned of the financial difficulties of the business and has attempted to come to an agreement with the employees, their representative or trade union in relation to a proposed exemption from payment of statutory sick leave payment, and
the employer is unable to pay statutory sick leave payment to the employees, due to the employer not having the ability to pay or being unlikely to be able to pay, to the extent that, if the employer were compelled to pay there would be a substantial risk—
having regard to the number of employees employed by the employer, that a material number of those employees would be likely to be laid-off employment with the employer, or made redundant, or
that the sustainability of the employer’s business would be significantly adversely affected.

The Labour Court maintains a register of all decisions under this section and shall make the register available for examination by members of the public at such place and reasonable times as it thinks fit.

Protection of Employment Rights

Without prejudice to any contractual or other right that an employee may, otherwise enjoy, an employee shall, during a period of absence from work by the employee while on statutory sick leave, be treated as if he or she had not been so absent and such absence shall not affect any right related to the employee’s employment whether conferred by statute, contract or otherwise.

Absence from employment while on statutory sick leave shall not be treated as part of any other leave from employment (including annual leave, maternity leave, additional maternity leave, leave under the Maternity Protection Act 1994 , adoptive leave within the meaning of the Adoptive Leave Act 1995 , additional adoptive leave within the meaning of the Adoptive Leave Act 1995 , paternity leave, transferred paternity leave and parent’s leave) to which the employee concerned is entitled.

Where—

an employee who is on probation in his or her employment or is undergoing training in relation to that employment or is employed under a contract of apprenticeship takes statutory sick leave, and
his or her employer considers that the employee’s absence from employment while on statutory sick leave would not be consistent with the continuance of the probation, training or apprenticeship,

the employer may require that the probation, training or apprenticeship be suspended during the period of statutory sick leave and be completed by the employee at the end of that period.

Protection from Penalisation

An employer shall not penalise or threaten penalisation of an employee for proposing to exercise or having exercised his or her entitlement to statutory sick leave.

If a penalisation of an employee, constitutes a dismissal of the employee under the Unfair Dismissals Acts 1977 to 2015, relief may not be granted to the employee in respect of the penalisation both under this Act and under those Acts.

Penalisation is any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment

Records

An employer shall make a record of the statutory sick leave taken by each of his or her employees.

A record shall include—

the period of employment of each employee who availed of statutory sick leave,
the dates and times of statutory sick leave in respect of each employee who availed of such leave, and
the rate of statutory sick leave payment in relation to each employee who availed of statutory sick leave.

A record shall be retained by the employer concerned for a period of 4 years.

An employer who, without reasonable cause, fails to comply with this obligation is guilty of an offence. A person guilty of an offence is liable on summary conviction to a class C fine.

WRC

Where an employee believes that his or her employer has failed to comply with the provisions of the legislation , the employee may make a complaint to the WRC.

A decision of an adjudication officer in relation to a complaint or dispute between an employee and an employer concerning the employee’s entitlement may include an award of compensation in favour of the employee concerned to be paid by the employer concerned) of such amount, as the adjudication officer considers just and equitable having regard to all the circumstances but shall not exceed 4 weeks’ remuneration in respect of the employee’s employment calculated in such manner as may be prescribed.