Over the past number of months I have noticed an influx in queries from clients who are unsure as to what exactly are their legal obligations to employees who are absent from work due to sickness. This is a huge problem particularly for small businesses with limited resources and staff who are struggling to survive in the current climate. I am always asked the same questions by employers – am I obliged to pay an employee who is out sick?
There is no general right in law to be paid while absent from work due to illness. However, employers take note, an entitlement to sick pay may be implied from the custom and practice or may arise in contract.
The leading case in this area is the case of Charlton v HH The Aga Khans Studs Societe Civile [1999]. Here the employer refused to make payments to the Plaintiff in respect of sick pay claiming that they had no contractual obligation to do so and suggested that the Plaintiff rely on her social welfare entitlement.
In the course of her judgement, Laffoy J. commented:-
“It is a common case that the terms of the Plaintiff’s employment with the Defendant are no contained in a written contract. It is also a common case that it is not an express term of the Plaintiff’s employment that she is entitled to be paid her salary while absent from work due to illness or incapacity. The Plaintiff’s contention is that her entitlement to sick pay is an implied term of her contract of employment. Her case is that it has always been the position in the Defendant’s studs, that longstanding employees were paid their salary in full when they were absent through illness and that this custom is part of her terms of employment”.
In the those circumstance where there had been a custom and practice of payment of full salary while in sick leave, Judge Laffoy found in the Plaintiff’s favour and ordered that her salary be paid for so long as she remained ill provided the Plaintiff furnished a weekly illness report.
To avoid any confusion employers should always ensure that its policy in relation to absence and sick pay is clearly and expressly set out in each and every one of its employees contract of employment. In drafting clauses relating to sick pay entitlement, reference should be made to any health care insurance or to income continuance plans which may cover payment to an employee after the employer’s obligations to pay sick pay have ceased. Such entitlement would usually arise within large companies. Smaller business tend to pay employees a full salary for a specified period of absence provided a medical certificate is furnished and thereafter employees are referred to the Department of Social Welfare. However, some employers do not make any payments during sick leave and provided this has been the policy of the employer throughout and there are no express contractual obligations to pay salary during sick leave, this is absolutely fine. Sick pay polices vary but my advise to all my clients is to set out a clear and concise policy and stick to it.
Next week I will be discussing the issue of sick leave and employers obligations. If you have any queries please contact Catriona[at]brophysolicitors.ie
Catriona Sharkey
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