Employee Awarded Compensation After Certified Sick Leave Triggered Sanctions
Background
This WRC case (ADJ-00052845) focused on the conflict between an employer’s internal absence management policy and the Sick Leave Act 2022. The complainant initiated the case after being denied statutory sick pay. This denial occurred because she was under a disciplinary sanction – triggered by her absence record under the company’s policy – which excluded her from the employer’s own sick pay scheme. The employer contested the claim, arguing that because its internal sick pay scheme was generally ‘more favourable’ than the statutory provisions, the company was exempt from the Sick Leave Act 2022 requirements, even for employees barred from accessing the company scheme due to disciplinary reasons. The core legal question was whether such internal rules and sanctions could negate an employee’s statutory right to sick pay.
Complainant’s View
The complainant represented herself and gave evidence under affirmation. The employee relied on her written submission, which challenged the employer’s absence management policy. Under this policy, investigation meetings were triggered based solely on the number of absences, regardless of whether they were medically certified.
Between 6 June and 27 December 2023, the complainant was absent for 17 days, mostly certified, due to Covid-19 and a work-related injury. On 3 January 2024, the employee was called into an investigation meeting and felt that the employer was dismissive of the reasons for her absence. The employee was referred to the company doctor, whose report was shared with HR and her manager.
On 18 January 2024, the employee attended a disciplinary hearing and received a verbal warning on 26 January. This resulted in a six-month exclusion from sick pay and a warning of further sanctions for future absences. The employee appealed on 9 February 2024, referencing the Sick Leave Act 2022 and claiming procedural flaws, including lack of warning and failure to consider mitigating circumstances. The employee’s appeal was rejected on the basis that the employer’s policy was more favourable than the statutory scheme.
The complainant stated the process caused significant emotional distress. The employee became anxious and feared dismissal. The employee also noted that other employees avoided taking sick leave, heightening her concern.
Despite remaining in the role to gain experience, the employee became ill again in May 2024 and took certified leave for a chest infection. This triggered another investigation, during which her condition worsened, and she required emergency care. Following the employee’s return, she took compassionate leave for her grandmother’s illness and funeral. Upon returning to work on 12 June 2024, the employee was again told the policy had been triggered. Feeling unable to face further disciplinary action, the employee resigned.
The employee remained unemployed and actively sought new work. The employee submitted documentation in support of her claim. No objection was raised to this evidence, though it was challenged by the employer. The only matter before the WRC was the alleged failure to pay statutory sick leave for May 2024.
Respondent’s View
The employer was represented by IBEC, which submitted a detailed written statement with appendices on 10 October 2024. Although several employer representatives attended, none were presented as witnesses. The employer relied on written and oral submissions only.
Additional documentation was submitted on 28 January 2025 and shared with the complainant. The employer rejected the claim that the complainant was entitled to statutory sick pay.
Where needed, the adjudicator made additional inquiries to clarify facts.
Findings & Conclusions
The adjudicator reviewed all evidence and submissions. It was accepted that the complainant had experienced genuine, certified illnesses across unrelated absences. Although the employer followed its own disciplinary procedures, the adjudicator found the policy was overly rigid in treating all absences – certified or not – the same.
The complainant began work on 14 August 2023 and was absent on six occasions before the end of that year. Under the employer’s policy, five or more absences in 12 months triggered disciplinary action. A verbal warning was issued in January 2024 and upheld on appeal.
In May 2024, another certified absence triggered a fresh investigation. As the employer did not reset disciplinary records after sanction, all absences were assessed cumulatively. The complainant’s resignation followed additional compassionate leave and the prospect of repeated disciplinary proceedings.
The adjudicator found that the employer’s policy created anxiety and instability in the workplace. Since the complainant had been excluded from the employer’s sick pay scheme due to disciplinary status, she had no access to that scheme in May 2024.
The employer claimed its scheme was more favourable than the Sick Leave Act 2022 and that the Act therefore did not apply. However, the adjudicator found this argument irrelevant employees excluded from an internal scheme could still rely on their statutory rights.
The employer could not claim to offer a superior policy while denying access to it. The adjudicator concluded that the complainant had been entitled to statutory sick pay for her absence in May 2024.
Decision
In accordance with Section 41 of the Workplace Relations Act 2015 and Schedule 6, the adjudicator found the complaint (CA-00064763-001) to be well-founded. The employer was ordered to pay the complainant compensation of €500.
Recommendations for Employers
1) Distinguish Between Certified and Uncertified Absence
Employers should clearly differentiate between medically certified sick leave and uncertified absences. Applying disciplinary procedures uniformly, without considering legitimate medical evidence risks being seen as unreasonable and may undermine employee rights under legislation such as the Sick Leave Act 2022.
2) Statutory Sick Leave Rights Must Always Be Protected
Employers must ensure that their absence policies do not take away employees’ minimum rights under the Sick Leave Act 2022. Even if a policy is stricter or includes disciplinary steps, it cannot override the legal entitlement to paid sick leave. Internal sanctions must not be used in a way that denies employees their basic legal protections.
3) Enhanced Sick Pay Schemes Must Be Accessible in Practice
If an employer offers a sick pay scheme that is more generous than the statutory minimum, it must be genuinely available to employees when needed. Blocking access to that scheme such as through disciplinary action does not remove the employer’s duty to provide statutory sick pay. Denying both options may lead to legal consequences.