Even through there is no legal obligation to pay staff while they are out on sick leave, many employers have a sick leave policy where in ceertain circumstances, they pay staff when they are out sick.  This findings in this case present some interesting considerations for employers with regards to the terms of their sick leave policy and stresses the need to have clear and comprehensive clauses that do not discriminate and are applied fairly and consistently.

Astellas Ireland v SIPTU, LCR

Background
This case was referred to the Labour Court after the parties failed to reach agreement following conciliation. The case concerned a claim taken by the union on behalf of its members who were employed on temporary fixed-term contracts within the company.

All employees were entitled to benefits including the company sick pay scheme following a period of six months service. For those employees on fixed-term contracts, continuity of service for the purposes of the sick pay scheme was not broken where the employee was re-employed on successive fixed-term contracts. However, in any cases where there was a break in service before the renewal of a fixed-term contract, the worker had to wait for a further six months before they re-qualified for sick pay. The union was requesting that, in cases where a worker was re-engaged on a contract following a break in service, previous service would be reckonable for the purposes of entitlement to sick pay.

Employer’s arguments
The employer submitted that there was a company/union agreement in place which stipulated that temporary vacancies would be advertised internally and that in the event that no suitable person could be identified, previous temporary workers would be invited for interview for the positions. The employer argued that continuity of service did not apply in this case as the workers were all dismissed on the completion of previous temporary contracts. Those workers who were re-employed signed contracts accepting the terms and conditions. Additionally, the employer argued that if a permanent worker was to leave and subsequently be re-hired, the same waiting period of six months would apply for entitlement to company benefits.

Union’s arguments
The union argued that the company was not adhering to the 1999 ‘social partnership’ company/union agreement and that its members were being discriminated against by way of being treated less favourably than their permanent colleagues. The union submitted that it was seeking security for the workers in relation to the application of the terms and conditions in the agreement.

Recommendation
The Court recommended that where an employee’s temporary service was severed and the employee was subsequently re-employed within a period of 12 months that the employee should be assimilated back into the company’s benefits immediately. The Court further recommended that the parties enter into discussions to clarify the company’s requirements for the future operation of temporary contracts within the context of the company/union agreement.