A worker who was written up when he took ill after a warning about absenteeism has won over €1,400 – three weeks' pay – for a breach of rights under the Sick Leave Act.
The Workplace Relations Commission’s ruling in the case is only the second time an employer has been found to have violated the law, which came into effect at the start of 2023 and is still being phased in.
The worker, who was earning €12.70 an hour as a customer service advisor at an unidentified service provider to the financial services sector, told the tribunal he was disciplined with a verbal warning in September 2023 following "a number of unplanned absences" from work in 2023.
He said they were because either he or members of his family were unwell.
The worker said he became "very sick with flu-like symptoms" at work on 12 October 2023 and went out sick for a day and a half, submitting a doctor’s note to his employer and availing of his statutory sick pay rights under the act.
After this he was disciplined by his employer and received a written warning, which was upheld in an internal appeal.
The company’s position was that the worker had been absent six times in ten months, totalling 11.5 days, which it regarded as a "significantly high" level of absence and "beyond what is deemed as an acceptable level of attendance".
It told the tribunal it was "entitled to discipline" the employee, adding that "bad timekeeping" and "unauthorised absence" were listed as misconduct in its disciplinary policies. The company said that it had at all times followed the fair procedures and the relevant statutory code, and denied any breach of the Sick Leave Act.
Quoting the legislation, the worker, who represented himself, argued that a person availing of the statutory scheme was entitled to "be treated as if he or she had not been so absent". He also maintained he had been penalised for availing of his statutory sick leave "for exercising his rights under the Act" when his employer issued the warning.
The WRC fully anonymised its decision because it was interlinked with a parallel Industrial Relations Act complaint, which had to be heard behind closed doors, identifying the worker only as "Mr F" and the employer as a "service provider to financial services".
Adjudicator Emer O’Shea wrote that it was clear that a disciplinary hearing on 25 October last year and the written warning issued on 6 November "was linked to the claimant’s absence on certified sick leave" on 12 October.
She accepted the company had followed its attendance and disciplinary policy, but wrote that by taking into account the worker’s absence on statutory sick leave when it imposed the written warning, the employer was "in breach of the act".
However, she said there was no evidence of penalisation as alleged by the worker, the adjudicator added.
Ms O’Shea awarded €1,428.75, three weeks’ pay, for the breach. It is only the second time a worker has won a claim under the new legislation.
Doubts on expansion of scheme
At the start of this year, the statutory scheme’s coverage level expanded from three days’ paid sick leave to five.
Announcing the scheme in March 2022, then-Tánaiste Leo Varadkar said the statutory scheme would expand a worker’s basic entitlement to seven days’ leave in 2025 and 10 days in 2026 – but the further expansion of the scheme is now in doubt.
In answer to questions in the Dáil yesterday, Minister of State at the Department of Enterprise, Emer Higgins TD, stated that any further expansion of the scheme in 2025 would be subject to an economic assessment.
"I am aware that members of the business community have raised concerns about the overall impact of increased labour regulation on the cost of doing business," Deputy Higgins said.
Sinn Féin’s enterprise spokesperson Louise O’Reilly, who tabled the question, said the Government’s approach to the sick pay scheme was a "brazen and blatant" attempt at "pitting workers against business".
