The recent decision of the Workplace Relations Commission (“WRC”) in A Worker v Service Provider to Financial Services (ADJ-00048825) is one of only a few decisions issued to date under the relatively new Sick Leave Act, 2022.
Facts: The Complainant was employed as a customer service advisor with the Respondent company, and had occupied this role for just over a year at the time of lodging his complaint with the WRC. The Complainant had been disciplined for poor attendance a number of times over the months preceding the date on which he lodged his complaint.
The Complainant submitted a complaint to the WRC under the Industrial Relations Acts. In his complaint form, reference was made to sections 11(1), 11(2), and 12(1) of the Sick Leave Act, 2022 (the “Act”). Section 11(1) of the Act states that an employee, while on statutory sick leave, must be treated “as if he or she had not been so absent and such absence shall not affect any right related to the employee’s employment whether conferred by statute, contract or otherwise.” Section 12(1) states that an employee shall not be penalised or threatened with penalisation for exercising or proposing to exercise his or her right to statutory sick leave.
The Respondent submitted evidence of the Complainant’s poor attendance, showing a cumulative 110 hours missed in the course of one year’s employment. Details were provided regarding each of the Complainant’s absences and conversations that took place with the Complainant in respect of same, including during return-to-work interviews and other discussions. The Respondent’s Absence policy reviewed attendance in six-month periods. On 18th September 2023, the Complainant was invited to a disciplinary meeting relating to four absences during a six-month period. The Complainant was issued with a verbal warning in respect of those absences on 25th September 2023. The Complainant unsuccessfully appealed this warning. In upholding the warning, the Respondent referenced the cumulative hours missed in the course of the Complainant’s employment and the Complainant’s failure to make appropriate preparations for situations that may cause absence, such as arranging childcare for occasions of family illness.
On 12th October 2023, the Complainant was absent from work for a day and a half due to flu-like symptoms. He submitted a medical certificate and availed of statutory sick pay in accordance with the Act. On 25th October, a disciplinary meeting was held with the Complainant, following which he was issued with a first written warning on 6th November 2023. This warning pertained to the additional absence of the Complainant within a six-month period after receiving a verbal warning for absence. This written warning was also unsuccessfully appealed by the Complainant. The Complainant’s lack of willingness to organise alternative arrangements for foreseeable situations of absence was referred to in the appeal outcome. The appeals manager found that the Complainant had failed to demonstrate an understanding of the importance of maintaining a good level of attendance. She was of the view that the Complainant appeared to believe that his absence record was acceptable which, she said, “in itself is a cause for concern”.
The Complainant argued that the issuing of the written warning constituted a breach of the Act because, in disciplining him, the Respondent treated him as being absent contrary to section 11(1). He also argued that the issuing of a warning in respect of a period of statutory sick leave amounted to penalisation for exercising his rights under the Act.
A preliminary argument was made on behalf of the Respondent that the complaint was not lodged under the Sick Leave Act, 2022, but rather under the Industrial Relations Acts.
In respect of the substantive claim, it was argued on behalf of the Respondent that the Complainant had demonstrated an issue with the management of his absenteeism and that his absences, certified and uncertified, were excessive. The Respondent’s position was that it was entitled to discipline the Complainant in line with its Absence policy and Disciplinary policy, irrespective of the fact that his absence on 12th October 2023 for 1.5 days was certified.
In respect of the Complainant’s penalisation argument, the Respondent’s position was that the Complainant had not been penalised as he had been paid for the time off, and that the warnings issued were due to excessive absences and did not relate to the Complainant’s statutory sick pay.
Decision: The Adjudicator, Emer O’Shea, acknowledged the fact that the complaint was wrongly identified as falling under the Industrial Relations Acts. Despite this, she was satisfied that the Respondent was sufficiently on notice of the reliance of the Complainant on the Sick Leave Act, 2022. Therefore, the Adjudicator stated that she was satisfied as to her jurisdiction to hear the complaint in accordance with the principles set out in Louth VEC v. The Equality Tribunal [2016] IESC40.
Referring to the chronology of events, the Adjudicator concluded that the written warning sanction issued to the Complainant on 25th October 2023 was in breach of section 11 of the 2022 Act. The Adjudicator, in upholding the claim, found that the Respondent did not treat the Complainant as though he had not been absent as required by section 11(1), due to the fact that the written warning referenced the Complainant’s absence on 12th October 2023. The Respondent was ordered to pay the Complainant three weeks’ pay, amounting to €1,428.75, for the breach of section 11 of the Act.
The penalisation claim under section 12 of the Act was not upheld by the Adjudicator on the basis that the sanction was imposed on the Complainant before his assertion that there had been a breach of the Act.
Takeaway for Employers: This decision highlights the requirement under section 11 that employees who are on statutory sick leave must be treated as though they are not absent during that period. This is an interesting provision of the 2022 Act and one which employers may not be aware of. In managing absenteeism, employers must be very careful that periods of statutory sick leave are not referred to in the context of disciplinary proceedings for absence.
The Adjudicator’s finding that there was no penalisation because the first written warning was issued before the Complainant raised an issue about a breach of the Act does not appear to be correct. Section 12(1) prohibits the penalisation of an employee for “proposing to exercise or having exercised his or her entitlement to statutory sick leave.” The Complainant exercised his entitlement to statutory sick leave on 12th October 2023 and was issued with a disciplinary sanction on 6th November 2023. The fact that he did not raise a concern with the Respondent about a breach of the Act ought not to be relevant. The act of penalisation complained of was the issuing of the disciplinary sanction, which occurred after the exercise of his statutory sick leave entitlement.
Link – https://www.workplacerelations.ie/en/cases/2024/may/adj-00048825.html
Authors – Jenny Wakely and Hannah Smullen
24th June 2024
Anne O’Connell Solicitors
19-22 Lower Baggot Street, Dublin 2
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