This case concerns a shop assistant absent due to illness for four days in 2023 and claims that is entitled to statutory sick pay as provided by Section 5 of the Sick Leave Act 2022.

According to the Act, employees who have worked for at least 13 weeks with their employer are entitled to statutory sick pay (3 sick days per year), paid by the employer at 70 per cent of regular pay, up to a maximum of EUR 110 per day.

Section 8(1) of the Act also provides that an employer may provide a benefit that is as favourable to an employee or more favourable to the employee than the statutory sick leave and that such a scheme must be instead of, and not in addition to, that entitlement.

The company's sick leave scheme provides for eight weeks of fully paid sick leave, of which the first three days of absence are considered "waiting days" and pay is not paid but is overall more favourable to the employee. Hence, the employer argued that it had acted correctly by not paying the first three days of sick leave.

The WRC considered the employer's scheme and compared its benefits with those of the Sick Leave Act and determined that the benefits offered in the employer's scheme were held to be more favourable to employees than the statutory benefits. The policy of not paying sick pay for the first three days of absence is a disadvantage to an employee who is absent for up to three days once in 12 months. It is offset by the policy of waiting until the fourth day and paying sick pay to employees who are absent for up to eight weeks in 12 months. It is a sickness benefit scheme designed to benefit employees who cannot work due to illness, and which discourages short-term absences.

The Irish Business and Employers Confederation (IBEC) expressed its favourable opinion concerning this decision, as it sheds light on the employer's obligations if they already have a company sick leave scheme, confirming that the WRC is required to consider all the aspects set out in Article 9 when determining whether an employer operates a company sick pay scheme that is, on balance, more favourable than the statutory provisions