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01 Jul 2022

EXPLAINER: New sick leave entitlements – Sick Leave Bill 2021, from Tormey Solicitors

EXPLAINER: New sick leave entitlements – Sick Leave Bill 2021, from Tormey Solicitors

EXPLAINER: New sick leave entitlements – Sick Leave Bill 2021, from Tormey Solicitors

Ireland is one of the few advanced European countries without a statutory mandatory employer sick pay scheme.

While many employers can provide sick pay to their staff if it is part of their contract of employment, this is often not the case.

Employees who are absent from work due to illness are then left looking to the Department of Employment Affairs and Social Protection to provide income support. The Government now intends to ensure all workers are covered by a sick pay scheme regardless of the illness.

As part of this process, the Department of Enterprise Trade and Employment conducted a public consultation and an international review of sick leave schemes in other jurisdictions.

In June 2021, the Tánaiste obtained cabinet approval to draft the Sick Leave Bill 2021 (Bill). The Bill has recently been published on the Department's website.

The intention of the Bill currently going through the legislative process is that a new employment right will be created providing all employees covered by the Act with a minimum entitlement to 3 paid sick leave days per year from their employer.

The intention is that the Bill will provide a base level of protection to all employees and that existing less favourable sick pay arrangements will be rendered null and void. However, the Bill will not apply to employers who provide more favourable sick leave schemes to their employees.

Eligibility

An employee will only become eligible for statutory sick pay once they have worked for their employer for a period of six months.

Certification

An employee will need to be certified as unfit to work due to illness or injury by a medical practitioner in order to be eligible for statutory sick leave. Part-time or irregular hours workers will receive statutory sick leave for days they would ordinarily work.

Rate of Payment

An employee will be entitled to 70% of their gross normal earnings in respect of their sick leave entitlement up to a maximum of €110 per day. The upper earnings threshold is designed to prevent excessive costs being imposed on businesses and reflects Quarter 4 2019 national mean weekly earnings from the Central Statistics Office (CSO).

Minister may set the Rate and Days

The Minister will have the power to amend the number of paid sick leave days an employee will be entitled to under the Bill when enacted. The initial entitlement of three days is modest to provide employers with an opportunity to adjust to costs
and the administrative burden, however, it is intended that over time the level of coverage will increase incrementally.

The Minister will have the power to amend:

  • The number of sick leave days provided for under the Bill when enacted
  • The percentage rate that shall be paid
  • The upper earnings maximum cap provided for

Amendments will be made following consideration and due regard by the Minister to:

  • The economic climate
  • The CSO annual and quarterly data on earnings and labour costs
  • the possible impacts an amendment will have on both employers and employees

Recording and Counting of Statutory Sick Leave

Employers will be prevented from recording sick leave to which an employee is entitled under the Bill when enacted as any other form of leave.

In addition, an absence related to sick leave under the Bill when enacted need not be counted towards the time required to complete a period of probation, training or apprenticeship.

Protection from Penalisation

An employee cannot be penalised for availing of sick leave as provided for under the Bill in line with similar provisions in existing legislation e.g., availing of sick leave will not be considered as appropriate grounds for dismissal, for selection for redundancy or cannot result in an unfavourable change in employment conditions upon the employees return.

Employers who genuinely cannot afford to pay the statutory sick leave payment can apply to the Labour Court for an exemption from the Bill. Such an exemption can apply to the employer from between three months to a year. The Labour Court will look for an agreement between the employer and their employees consenting to the exemption.

Failing this, the Labour Court may still grant an exemption if satisfied that the employer has informed its employees of its financial difficulties and attempted to reach an agreement, and that if the employer was compelled to pay statutory sick leave payment the viability of the business would be adversely affected, or likely lead to a material number of employees being laid-off or made redundant.

The Bill as drafted has now commenced its journey through the legislative process and so we will have to wait and see what amendments are introduced by the Dáil and Seanad.

Employers who currently have no provision for sick pay will be watching very closely as this legislation progresses.

*The above article consists of general recomendations and should not be interpreted as legal advice. You should contact a Solicitor to secure advice specific to your individual requirements.

In contentious business, a Solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.

Tormeys Solicitors have been serving the people of the midlands for almost a century, specialising in *Personal Injury, *Medical Negligence, *Conveyancing, *Probate, *Commercial Law and *Employment Law.

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