The Workplace Relations Commission (“WRC”) has recently considered the circumstances in which employers may rely on the exemption from statutory sick pay (“SSP”) under Section 9 of the Sick Leave Act 2022 (“the Act”) in Krzysztof Stojek v DHL Supply Chain Ireland Limited (ADJ-00057166) and Olaf Zukowski v OCS Ireland (ADJ-00060980). The key issue in both cases was whether the employers’ sick pay schemes were more favourable than the SSP entitlement. The decisions provide useful guidance on how the Section 9 exemption may be assessed in practice.
Facts: The Complainant has worked for the Respondent as a HGV Driver since 16 December 2019. He had been on sick leave from 2nd December 2024 to 4th February 2025 and argued that he had not received proper sick pay for a number of periods during this time.
The Complainant submitted that the Respondent had failed to comply with the Act, while the Respondent submitted that the terms of the Act did not apply as the company sick pay (“CSP”) was more favourable overall.
Decision: The WRC Adjudicator, Michael McEntee, finding in favour of the Respondent, determined that the CSP was overall more favourable than SSP.
Mr McEntee noted that section 8(1) of the Act expressly provides that a qualifying CSP scheme operates “in substitution for, and not in addition to” statutory sick leave. He accepted the Respondent’s argument that the use of the word “substitution” indicates that a more favourable CSP scheme replaces, rather than supplements, the statutory entitlement.
The exemption from SSP under Section 9(1) of the Act was also noted. It provides that the obligations imposed by the Act do not apply where an employer operates a CSP scheme that confers benefits on employees which are more favourable as a whole than those provided under the Act.
The Adjudicator noted the CSP (depending on grade and service) provided for 26 weeks full pay and a further 26 weeks at half pay following completion of probation (generally 3 months) and applied a waiting period of 3 days. It was accepted that this was more favourable than 5 days sick pay (70% of normal earnings, capped at €110 per day) under the SSP scheme.
The Adjudicator did acknowledge that a waiting period of three days before the CSP was paid was a disadvantage to any employee who may only be sick 3 days in 12 months. However, he stated that this was outweighed by the potential provision of full pay on the fourth day for 26 weeks and a further 26 weeks half pay.
Olaf Zukowski v OCS Ireland
Facts: The Complainant was employed as a security guard for the Respondent from March 2023 to July 2025. He was certified unfit for work between 13 and 20 June 2025 and during this period he was due to work two shifts. He notified his employer and provided a medical certificate, however he received no payment as the Respondent applied the three waiting days in the sick pay scheme under the Security Industry Employment Regulation Order SI No. 326 of 2025 (“the Security Industry ERO”).
Under the Act, employees with at least 13 weeks’ service are entitled to statutory sick pay from the first day of certified sick leave, with no waiting days, with eligible employees receiving up to five statutory sick leave days per year, paid at 70% of normal earnings (up to €110 per day).
The Security Industry ERO provides a separate non-contributory sick pay scheme. However, it contains a three-day waiting period before payment begins and provides benefits of €120 per rostered week (or a pro rata amount), with the level of entitlement increasing according to length of service. Employees retain any social welfare payments and must apply for them themselves.
The Respondent again in this instance, relied on the exemption under Section 9(1) of the Act and argued that the Security Industry ERO scheme is as a whole, more favorable to the employee than the SSP scheme, if so then the Respondent was exempt from the obligations under the Act.
Decision: The Adjudication Officer, Brian Dalton found that the Security Industry ERO scheme as a whole was not more favouable to the Complainant than SSP scheme. On that basis the exemption under Section 9(1) did not apply and the Complainant should have received SSP.
The Adjudicator considered both schemes under Section 9(2) of the Act, which sets out the factors that must be considered when determining whether an employer’s sick leave scheme is, overall, more favourable than the SSP scheme. The Adjudicator determined that these factors are assessed from the perspective of an individual employee and include: the length of service required before entitlement arises, any waiting days before payment becomes payable, the duration of paid sick leave, the amount payable, and the reference period of the scheme.
The table below compares both schemes under Section 9 (2) of the Act:
| Section 9(2) factor | Statutory sick leave | Security ERO sick pay scheme |
|---|---|---|
| (a) Service required before payable | 13 weeks | 18 months for the three-week tier |
| (b)Waiting days before payable | None, paid from the first day | First three days of any absence unpaid |
| (c) Period for which payable | 5 days a year | 3 weeks at 18 months, 4 weeks at 30 months, 5 weeks at 42 months |
| (d)Amount payable | 70 per cent of normal pay up to €110 a day, applied at €110 a day in the agreed figures | €120 a rostered week, €60 pro rata for two shifts, and the worker keeps social welfare |
| (e) Reference period | 12 months | 12 months |
The Adjudicator in applying both schemes to the Complainant’s own circumstances on the three week entitlement determined that the pay he would have received under the SSP scheme was €660, while under the Industry Security ERO he would have received €594. On that basis, the Adjudicator found that the Security Industry ERO was not as a whole more favourable to the Complainant and awarded €220 as compensation.
Takeaway for Employers: The DHL decision confirms that a generous CSP scheme can still qualify for the Section 9 exemption even where it contains features that are less favourable than SSP, such as waiting days, provided the overall benefit package is significantly better.
In contrast to DHL decision, the Adjudicator in the OCS decision focused closely on the practical effect of both schemes for the individual employee concerned. Although the Security Industry ERO scheme provided a potentially longer period of paid sick leave, the combination of the waiting period and lower payments meant that the Complainant would have received less, than under SSP scheme. Furthermore, while the payment would increase once the Complainant had more service the Adjudicator assessed the Security Industry ERO Scheme on the three week entitlement that actually applied to the Complainant and not a benefit he had yet earned and could not receive. On that basis, the Section 9 exemption was unavailable.
These decisions serve as a timely reminder that employers cannot assume that the existence of a company or sectoral sick pay scheme automatically relieves them of their obligations under the Sick Leave Act 2022. The key question is whether the scheme is genuinely more favourable when assessed against the statutory criteria in section 9 and, potentially, in the context of the individual employee’s circumstances. Employers should therefore review their sick pay arrangements, including any waiting periods, eligibility requirements and benefit levels, to ensure they can demonstrate that their scheme is more favourable overall and can validly rely on the section 9 exemption.
Link to Decisions
Olaf Zukowski v OCS Ireland (ADJ-00060980)
Krzysztof Stojek v DHL Supply Chain Ireland Limited (ADJ-00057166)
August, 2026
Author – Ethna Dillon and Laura Killelea
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