In general an employee has no right under employment law to be paid while on sick leave. Consequently, it is at the discretion of the employer to decide his/her own policy on sick pay and sick leave, subject to the employee’s contract or terms of employment. Under Section 3 of the Terms of Employment (Information) Act 1994 and 2001 an employer must provide an employee with a written statement of terms of employment within two months of the commencement of the employment. One of the terms referred to in this Act on which the employer must provide information is the terms or conditions relating to incapacity for work due to sickness or injury.
If you have no entitlement in your terms and conditions of employment to pay during sick leave, you may apply for Illness Benefit if you have enough social insurance contributions. If you do not have enough social insurance contributions, you should contact the Department of Social Protection's representative (formerly the Community Welfare Officer) at your local health centre who will assess your situation.
If you are entitled to sick pay, your employer will probably require you to sign over any Illness Benefit payment from the Department of Social Protection to your employer for as long as the sick pay continues.
Often, your contract of employment will place a maximum period of sick pay entitlement in a stated period, for example, one month's sick pay in any 12-month period. Clear rules should be put in place by the employer where an employee is sick and is unavailable for work. For example, it should be clear that if you are sick and unavailable for work, you must contact a specified person by a certain time. Your employer can require you to provide a medical certificate (from your GP or family doctor) when you are on sick leave. For example, you may have to provide a medical certificate if you are out sick for more than 2 consecutive days. The medical certificate should state the date you are likely to return to work. If you are likely to be out sick for a longer period, your employer may require you provide weekly medical certificates.
In some circumstances, where an employee has consistently been absent from work (or if through illness is no longer capable of continuing work), employment may be terminated. Employees are protected in certain circumstances in this instance through the unfair dismissals legislation.
If you are unsure about whether or not you are entitled to sick pay, you should consult your contract of employment or speak to your employer.
An employee who does not receive sick pay as per his/her terms of employment may make a complaint under the Payment of Wages Act using the new online complaint form (available by selecting ‘Make a complaint in relation to employment rights’ on workplacerelations.ie).
If you have an accident at work and you are not entitled to sick pay, you can apply for Injury Benefit. This is a weekly payment from the Department of Social Protection if you are unfit for work due to an accident at work or an occupational disease. Under the Medical Care Scheme you can claim certain medical costs that are not paid by the Health Service Executive (HSE) or covered by Treatment Benefit Scheme. You can find out more about these payments in our document on the Occupational Injuries Benefit Scheme.
If you are entitled to sick pay, your employer will probably require you to sign over any Injury Benefit payment from the Department of Social Protection to your employer for as long as the sick pay continues.
If you have suffered an injury at work, you can seek compensation from your employer by making a personal injury claim through InjuriesBoard.ie. You can read more about this in our document on health and safety in the workplace.
If you are a full time worker who is on sick leave during a public holiday, you have an entitlement to time off work for the public holiday(s) you missed. If you are a part-time worker on sick leave during a public holiday, you would be entitled to time off work for the public holiday provided you worked for your employer at least 40 hours in the previous 5-week period.
However, you are not entitled to the public holiday if you are absent from work immediately before the public holiday and you have been off work for more than 26 weeks due to an ordinary illness or accident, or for more than 52 weeks due to an occupational accident.
If you are ill during your annual leave and have a medical certificate for the days you were ill, these sick days will not be counted as annual leave days. Instead, you can use these days as annual leave at a later date.
An employer cannot require you to take annual leave for a certified period of illness. However, illness during the leave year will reduce the total number of hours worked by you and may therefore affect your entitlement to annual leave under the Organisation of Working Time Act. For information about long-term sick leave and annual leave see ‘Further information’ below.
In 2009 the European Court of Justice (ECJ) ruled in case C-350/06 that a worker who is on long-term sick leave during the leave year does not lose the right to annual leave. The ECJ ruling states that employees who have not worked during the leave year because they are on sick leave, are entitled to their statutory annual leave for that year. According to this ruling workers are entitled to accumulate annual leave while on sick leave.
Many employers insist that you take your annual leave by a particular date, for example, the end of the calendar year. This ECJ ruling also applies to a worker who was on sick leave immediately before leaving the employment. This means that the worker would be entitled either to carry over, or receive payment for, annual leave which was not taken because the worker was on sick leave.
The Organisation of Working Time Act 1997 states that the employee’s entitlement to annual leave is based on hours actually worked. Until this legislation is amended this ECJ ruling that an employee can accrue annual leave while on sick leave is not enforceable by employees in the private sector. However under the principle of ‘direct effect’ it does apply to the public sector and therefore workers in the public sector can accrue annual leave when they are off work on sick leave.
If you have a question relating to this topic you can contact the Citizens Information Phone Service on 0761 07 4000 (Monday to Friday, 9am to 8pm) or you can visit your local Citizens Information Centre.