Labour Court Finds Employer Not Required to Pay SSP Where Employee Did Not Qualify for Company Sick Pay

K Biotek Ireland Ltd v Shannon Reina (SLD262) is a recent decision by the Labour Court in respect of an appeal of a Workplace Relations Commission (“WRC”) decision concerning statutory sick pay. The Complainant lodged the original claim under the Sick Leave Act 2022 (the “Act”) in circumstances where she did not receive sick pay under her employer’s sick pay scheme due to a failure to follow their absence management policy, and she did not receive statutory sick pay either. The WRC Adjudicator upheld the Complainant’s claim and awarded her compensation of €500, but on appeal the Labour Court overturned this decision.

Facts: The Complainant was employed by the Respondent as a Quality Control Analyst from 14^th August 2023 until her resignation with effect from 12^th July 2024. The Complainant had a number of certified sickness-related absences during her employment with the Respondent and had previously received a verbal warning for breach of the Respondent’s absence management policy. As the Complainant submitted her complaint to the WRC on 14^th July 2024, only one period of sick leave, that between 13^th and 17^th May 2024 was within the cognisable period for the purpose of her WRC claim.

The Respondent operates a sick pay scheme for employees that includes an initial qualifying period of six months’ service. This was outlined in the Complainant’s contract of employment. Following the qualifying period, the scheme provides for payment of basic salary during sick leave up to a maximum of four weeks during any 12 consecutive months, provided that the employee complies with the rules of the sick pay scheme. Thereafter it provides that employees may be eligible to receive 50% pay for a further 4 weeks, subject to terms and conditions. The Complainant was regarded as being ineligible to benefit under the Respondent’s sick pay scheme because she had been found to be in breach of its absence management policy.

The Respondent’s position was that it was not subject to the statutory sick pay scheme provided for under the Act because its sick pay scheme confers benefits on employees which, as a whole, are more favourable than statutory sick pay. The Respondent’s legal representative, Des Ryan BL, provided a detailed comparison between the Respondent’s sick pay scheme and the statutory scheme. It was submitted on behalf of the Respondent that under section 9 of the Act, an employer’s sick pay scheme may be regarded as more favourable as a whole than statutory sick pay notwithstanding that it may be subject to certain conditions or eligibility criteria.

The Complainant told the Court that she agreed that the Respondent’s sick pay scheme was more favourable than statutory sick pay. Furthermore, she did not dispute the Respondent’s position that she did not meet the eligibility criteria of the Respondent’s scheme in May 2024 due to the extent of her absences from the workplace. However, the Complainant argued that in circumstances where she became disentitled to benefit from the Respondent’s sick pay scheme, the Respondent was obliged to apply the statutory scheme to her.

Decision:  The Labour Court did not agree with the Complainant’s contention and found that it was not consistent with the proper interpretation of the Act. The Labour Court found that the words used in section 9(1) of the Act are clear and unambiguous:

“The obligations under this Act shall not apply to an employer who provides his or her employees a sick leave scheme where the terms of the scheme confer, over the course of a reference period set out in the scheme, benefits that are, as a whole, more favourable to the employee than statutory sick leave.” [our emphasis].

The Court overturned the WRC Adjudicator’s decision and held that as the Respondent’s sick leave scheme fell squarely within section 9, which exempts the Respondent from the obligation to pay statutory sick pay, the Respondent was not obliged to pay the Complainant sick pay.

The Court commented “The section admits of no exceptions to this exemption and does not confer any discretion on this Court to imply any such exception into it.”

Takeaway for Employers: This decision makes it clear that employers are permitted to apply conditions to their sick pay scheme, and that where an employee does not qualify for company sick pay, employers are not required to pay statutory sick pay if the company scheme is exempt under section 9 of the Act. While the decision may be regarded as harsh, and indeed the Adjudicator in the original WRC decision regarded the Respondent’s actions as being “somewhat harsh” (in circumstances where the Complainant’s absences through illness were certified and genuine), the decision is in line with the provisions of the Act. The Act makes it clear that contractual sick pay and statutory sick pay don’t run in parallel. It is one or the other. To quote the decision of the Court in relation to section 9, “The section admits of no exceptions to this exemption and does not confer any discretion on this Court to imply any such exception into it.” 

Since the introduction of statutory sick pay there have been several notable decisions, including Ann Britton v. Amcor Flexibles Ltd as discussed in our most recent newsletter. Employers who have company sick pay schemes should give these schemes careful consideration and seek legal advice to ensure they are not in breach of their obligations under the Act.

Links–

Labour Court: https://www.workplacerelations.ie/en/cases/2026/february/sld262.html

WRC: https://www.workplacerelations.ie/en/cases/2025/march/adj-00052845.html

Authors – Tara Kelly and Jenny Wakely

27^th February 2026

Anne O’Connell Solicitors

19-22 Lower Baggot Street

Dublin 2.

www.aocsolicitors.ie