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Employer’s Decision To Not Pay The Employee Under The Sick Pay Scheme Determined As An Unlawful Deduction

Facts: This was an appeal by Mr Grzegorz Grzebalski (‘the Complainant’) against his employer, Tesco Ireland Limited (‘the Respondent’) under the Payment of wages Act, 1991.

The Complainant in his original complaint to WRC submitted that he was on a long-term sick leave from 4th February 2019 until 1st March 2020 and that he was entitled to 8 weeks’ sick pay each year under his contract of employment. The Respondent argued that the Complainant was already on notice, at the foot of an investigation into his absences, that any further occasions of absence may have led to his removal from the Company sick pay scheme. The Respondent further argued that the Complainant was informed by his manager that following the Complainant’s leave in February 2019 that his sick leave would be unpaid. The WRC held that the Complainant had not established that he was denied of any amount that was properly payable to him. The Complainant appealed this decision to the Labour Court.

The Labour Court noted that the Complainant was notified by the correspondence of 18th January 2019 which stated that “any future occasions of absence may lead … to your suspension or removal from the Company sick pay scheme”. The Court further noted the Respondent’s Sick Leave Policy was “conditional on provision of medical certificated and compliance with procedures for notification”. The Respondent submitted that the “decision not to pay the Complainant was reasonable and expected in the circumstances”.

Decision: Despite noting the correspondence of 18th January, the Labour Court found that the Respondent did not inform the Complainant at any stage that it had taken the decision to exclude him from its Sick Pay Scheme and hence the Complainant was entitled to the benefits from the Scheme. The Court directed the Respondent to pay the Complainant, an amount equivalent to 8 weeks gross wages less any statutory deductions.   

Takeaway for the Employers: The Court decided that it was an unlawful deduction solely because the employer did not communicate its decision to suspend the sick pay to the employee. Although the Employer in this case notified the employee that any future absences may lead to removal of that employee from the Sick Pay scheme, it did not make any further attempts to confirm that the payment was suspended. It is therefore important for the employer to notify its employees of the decisions and the basis of such decisions, in a clear and timely manner.

Link  – https://www.workplacerelations.ie/en/cases/2021/january/pwd211.html

Authors – Anne O’Connell & Chaitra Girish Mallya

29th January 2021

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2

www.aocsolicitors.ie

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