Does the employer pay for the public holiday?
Does the employer pay sick pay (if it has a sick pay scheme)?
Does the employer not pay for the day if the company does not have a sick pay scheme?
Entitlement to Public Holidays While on Sick Leave
Entitlements in respect of public holidays are governed by Section 21 of the Organisation of Working Time Act 1997
Most employees are entitled to paid leave on public holidays. Full time workers and part-time workers who have worked at least 40 hours in the 5 weeks prior to each public holiday are entitled to one of the following which his/her employer determines:
- a paid day off on that day,
- a paid day off within a month of that day,
- an additional day of annual leave,
- an additional day’s pay.
However, Section 21(5) of the Act outlines that if a worker, on the date of the public holiday, is absent for in excess of 52 consecutive weeks due to a work-related accident or in excess of 26 consecutive weeks due to a non work-related accident or due to any disease from which the employee suffers, he/she is not entitled to the public holiday in question.
That said, while the above is clear, the Act remains silent on what happens otherwise if the employee is on sick leave on the day the public holiday falls.
Sick Leave During a Public Holiday – Case Law
In the cases of Thermo King v Pat Kenny (2006) and HSE West v Alison Meehan (2008) the Labour Court held that under Section 21(1) of the Organisation of Working Time Act 1997, unless otherwise stated in the Contract of Employment, an employer was free to provide an employee with a day’s paid leave on the public holiday regardless of whether that employee was, or was not, sick on that day.
Therefore, an employee who is sick on a public holiday receives their public holiday entitlement as normal at that time.
The issue was revisited in the case of Leitrim County Council v Martin in 2009.
In this case, the employee in question was on certified sick leave over the Christmas Holidays in 2006 during which time there was 3 Public Holidays.
On this occasion, the employer paid the employee for the public holidays as Public Holidays rather than as Sick Pay i.e. the employer marked these three days as public holidays rather than sick leave days and thus, the employee was paid for the public holiday and not from the company’s Sick Pay Scheme.
However, the employee in this case claimed that the leave should have been classified as Sick leave, that he should have been paid as sick pay instead of public holiday pay and therefore that he should have been able to claim for 3 Public Holidays at a later date.
Having considered both arguments, the Rights Commissioner made a Recommendation favouring the employee and awarded the employee the 3 Public Holidays and compensation of €500.
The employer appealed the Recommendation of the Rights Commissioner to the Labour Court who overturned the decision and found in favour of the company.
In making its decision, the Labour Court noted that the employee had received 3 days off for the 3 Public Holidays which were not offset against his sick leave entitlements.
It found also that this was the practice of the employer in all cases where employees were on sick leave on a public holiday and thus was a legitimate practice.
Conclusion
When faced with an employee on sick leave on a public holiday, an employer should first review the length of time the employee has been on sick leave in order to ascertain whether or not the employee is entitled to the public holiday.
If, upon review, it is found that the employee is entitled to the public holiday, best-practice would indicate that the employee should be paid for the public holiday on the date the public holiday falls and this day should not be marked down as sick leave.
How We Can Help You?
We provide employers with support and advice, by phone, email and on-site, for all employment law and HR matters. Our Employment Law and HR Support Service is a must for all employers.
Next Steps
If you are an employer and have any questions, please contact your CollierBroderick HR Advisor, call us on 01 8666426, contact us, or email us on enquiries@collierbroderick.
