Sick pay cases before the Labour Court

There is no legal obligation on employers to provide an occupational sick pay scheme for employees. However, where an employee s contract of employment includes a reference to sick pay entitlement as part of the terms of employment, a right to sick pay exists under contract law.

In a company that has no formal sick pay scheme, but it is normal for employees to be paid when absent through illness or injury, a right to such sick pay may be established through custom and practice.

The purpose of a company sick pay scheme is to alleviate financial hardship as a result of unavoidable absence from work through genuine illness. The underlying assumption of a sick pay scheme is that a company needs a healthy workforce. Loss of earnings while out sick may prevent an employee from taking proper care of their health.

 

An Post and A worker (Represented by CWU) CD/16/280 DECISION NO.LCR21332

This case was heard on appeal to the Labour Court. The Worker had been on sick leave since February 2013. The Respondent’s medical officer advised in June 2015 that the Worker was fit to work in another location. The Respondent retrained the Worker in a new role. After two weeks in this role, the Worker went on sick leave again. Following medical advice that the Worker was fit to work, the Respondent suspended sick pay to the employee.

The Union argued that the Worker’s restoration to the company’s payroll should be backdated to July 2015 as his absence from that time until his return to work in September was medically certified. The Worker did not apply for social welfare during the approx. 18 months that he was removed from the sick pay scheme.

The Respondent argued that at all times up to date medical information was followed. They provided suitable work for the Worker elsewhere and retrained him. The sick pay scheme was only removed when the Worker was deemed fit to work by the Respondent’s occupational health specialist. The Respondent argued that the Worker’s absence thereafter was not justified.

The Court noted in their decision that the Worker did not apply to the Department of Social Protection for any social welfare payment during that period. The sole issue referred to the Court related to a claim for compensation arising from the Respondent’s decision to discontinue payment to the Worker during that 18-month period. The Court was of the view that the claim for compensation before it “has not been made out in all the circumstances”. Therefore, the appeal failed. The removal from the sick pay scheme was justified.

HSE South East (Treatment Abroad Scheme) and A Worker (Represented by Irish Municipal, Public and Civil Trade Union) CD/16/17 DECISION NO.LCR21215

This appeal concerned a Worker’s claim that they were treated inequitably by the Respondent by their removal from the sick pay scheme. The Respondent argued that they operated appropriately in their application of the scheme.

The Worker is employed as a Clerical Officer. At the Respondent’s request, she attended for an occupational health assessment on 10 February 2014. The report recommended that it would be in her interest to transfer to a different department within the Respondent organisation. A meeting had been scheduled to take place between the Worker and her line manager on 12 February 2014 following the occupational health assessment. The Worker advised her line manager, that she wished to be accompanied to the meeting the following morning. This meeting was then postponed.

The Respondent issued a letter on 12 February to the Worker advising that she was not entitled to be accompanied to what was intended to be an attendance review meeting for the purpose of discussing the Worker’s ‘non-compliance’ with the Respondent’s Management Attendance Policy and ‘the work related stressors’ that contributed to her ongoing absence. The letter also advised the Worker that consideration would be given to removing her from the HSE sick pay scheme in the event that she was deemed not to be complying with ‘reasonable measures to support [her] in [her] absence’. She was invited to attend a rescheduled meeting set for 14 February 2014, which she did not attend.

The Worker was removed from the sick pay scheme with effect from 18 February 2014. The Worker submitted a formal grievance in response to the Respondent’s decision to cease her sick pay and related issues. The grievance was not upheld. Ultimately, the Worker attended a management review meeting, unaccompanied, on 26 May 2014 and returned to work on 12 August 2014.

The Respondent submitted that the Worker was removed from the sick pay scheme as she failed to comply with the terms of the scheme: she refused to meet her supervisor in February 2014 to discuss her continuing absence; failed to submit medical certificates in a timely manner; and she did not remain in regular contact with the Respondent throughout the period of her sick leave absence despite her supervisor’s best efforts to maintain contact with her.

The Union submitted that the Worker should have been permitted to be accompanied at the meeting of 12 February 2014 as the meeting had the potential to be very stressful for the Worker and the Respondent ought to have been aware of this given that the Respondent knew of the work-related stressors flagged by the Worker and had also received the occupational health report dated 10 February 2014.

The Union submitted that the Respondent should not have taken the decision to remove the Worker from the sick pay scheme without first undertaking a disciplinary procedure. The Union characterised the Respondent’s decision in this regard as a sanction.

In their recommendation, the Court did not accept the Union’s submission that the removal of the Worker’s sick pay with effect from 18 February 2014 equated to a disciplinary sanction. Nevertheless, the Worker’s concerns regarding work-related stress and her request to be transferred to an alternative department within the Respondent are matters that the Respondent ought to have been far more proactive in dealing with. The employee was deprived of sick pay for some 6 months because she had a genuine concern about attending unaccompanied at a meeting she believed could have had long-term implications for her future in the workplace. This should not have been allowed to continue for that period of time.

The Court recommended that the Respondent should deem the Worker to have been restored to the sick pay scheme with effect from 18 May 2014 and pay her the sick pay she would have been entitled to from that date until her return to work on 12 August 2014.

The above cases highlight a number of key considerations from employers. For example, in deeming an employee’s absence unauthorised and removing them from the sick pay scheme, up to date medical information must be obtained.

Likewise, in the case of the HSE, employers should be careful in their approach to work-related stress issues from their employees, handling these cases with extreme sensitivity before a decision is made to remove them from the sick pay scheme.

Many employers in Ireland provide the benefit of a sick pay scheme. Regular and vigilant review and management of the scheme, and absence, is essential in order for it to remain cost effective.

 

 

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