# Sick pay sick leave



## Fisherman (20 May 2014)

Copied from citizensadvice.ie 
*Long-term sick leave and annual leave*

_"In 2009 the European Court of Justice (ECJ) ruled __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."_

Can anybody explain why this ECJ ruling has not been enacted so as to allow all citizens to avail of the ruling?


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## Purple (21 May 2014)

Fisherman said:


> Can anybody explain why this ECJ ruling has not been enacted so as to allow all citizens to avail of the ruling?



Because the country is screwed and so why rush to enact stupid European Court rulings?


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## Guinea pig (21 May 2014)

I have to agree, I don't think you should accrue holiday time while out sick. 

Our situation is, if you book your weeks holidays, you will get them but if you have missed time from work in the preceding 13 weeks, you will have your holiday pay reduced on a pro rata basis. I think this is fair. 

Unfortunately the new 6 days rules for payment but the social welfare mean now that if someone goes out sick, they are usually off for 2 weeks or more, as if you come back too early and have to go out again, you risk 12 days unpaid leave. This means that the reduction in your pay when you do get around to holidays can be substantial.


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## Fisherman (21 May 2014)

I had stumbled across that ECJ ruling when searching for something else and I thought it wrong to allow public sector to avail and not the rest of us lesser mortals.  I agree you should _earn _holiday time.


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## Purple (22 May 2014)

Fisherman said:


> I had stumbled across that ECJ ruling when searching for something else and I thought it wrong to allow public sector to avail and not the rest of us lesser mortals.  I agree you should _earn _holiday time.



The protected sectors of the economy get these things because the rest of us pay for them. WE can't pay for ourselves as well!


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## dereko1969 (22 May 2014)

Purple said:


> The protected sectors of the economy get these things because the rest of us pay for them. WE can't pay for ourselves as well!


 
Bit surprised at you Purple, the reason the "protected sector" as you describe it "benefit" is because of the direct effect of the ECJ decision, not because public sector workers went looking for it. Was the ECJ case even an Irish case?


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## Purple (22 May 2014)

dereko1969 said:


> Bit surprised at you Purple, the reason the "protected sector" as you describe it "benefit" is because of the direct effect of the ECJ decision, not because public sector workers went looking for it. Was the ECJ case even an Irish case?



The reason the protected sector employees benefit from it is that ECJ decisions are automatically implemented for them, whether they are incorporated into Irish law or not. “wurker” is the incorrect term as they derive their T&C’s by virtue of their employment. The term “worker”, or “Wurker” as it is commonly called, is a Trade Union term which is used by the same people who refer to their colleagues as Comrades. Other than the Bearded Brethren it is only used by the Public Sector Broadcaster and other left-wing media outlets.
The rest of us pay for it in that all public services are paid for through general taxation and while public sector employees and others in the protected sector do pay taxes they are not net contributors to the exchequer. Therefore the burden of paying for unproductive and stupid benefits such as holidays accruing while on paid sick leave (another perk the rest of us pay for) falls on the productive, unprotected sector of the economy. 
I’m not saying that those in the protected sector don’t work hard or benefit society but we have no way of knowing if they are efficient or offer value for money and additional perks such as those above equate to an additional and unnecessary cost to the state.


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## Sunny (22 May 2014)

The same arguments could be made by people who work in small businesses compared to large company in the private sector. No large company that I worked for ever adjusted annual leave to account for sick leave. And then the casual or contract workers can make the same comments about people lucky enough to have permanent jobs in small businesses. And then the unemployed can make the same comments about the people lucky enough to have casual or contract employment. And then the self employed can say the same about the unemployed people as they don't get paid sick leave or holidays and don't even get social welfare. 

Have we not gone past the private sector v public sector divide. There is always someone better or worse off.


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## Purple (23 May 2014)

Sunny said:


> The same arguments could be made by people who work in small businesses compared to large company in the private sector. No large company that I worked for ever adjusted annual leave to account for sick leave. And then the casual or contract workers can make the same comments about people lucky enough to have permanent jobs in small businesses. And then the unemployed can make the same comments about the people lucky enough to have casual or contract employment. And then the self employed can say the same about the unemployed people as they don't get paid sick leave or holidays and don't even get social welfare.
> 
> Have we not gone past the private sector v public sector divide. There is always someone better or worse off.



The problem we face as a country is that we can’t afford to pay our bills. Take out bank debt and all associated debt and we still can’t pay them. Adding more costs is sometimes necessary; essential services and supports etc. Adding a provision that people on paid sick leave accrue holiday pay is a slap in the face to the rest of us, whether we are self employed, unemployed or working in the protected sector or the open commercial sector.
I’m not dividing this between the Public Sector and the Private Sector as so-called “commercial” semi state companies and the former semi-state monopolies which now operate as oligopolies are also part of the protected sector.


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## Sunny (23 May 2014)

Purple said:


> The problem we face as a country is that we can’t afford to pay our bills. Take out bank debt and all associated debt and we still can’t pay them. Adding more costs is sometimes necessary; essential services and supports etc. Adding a provision that people on paid sick leave accrue holiday pay is a slap in the face to the rest of us, whether we are self employed, unemployed or working in the protected sector or the open commercial sector.
> I’m not dividing this between the Public Sector and the Private Sector as so-called “commercial” semi state companies and the former semi-state monopolies which now operate as oligopolies are also part of the protected sector.


 
Of course you are dividing it. The legislation is such that ECJ judgements automaticaly get applied to the public sector. That's European Law. It's not Ireland deciding to be different or the public sector and trade unions milking the taxpayer.
This ruling only affects long term sick leave as anyone only has to work 1365 hours in a hear to be entitled to 4 weeks holiday. That's about 26 hours per week. If someone is so sick that they can't work this, they either have a serious illness or injury and deserve to be supported by their employer (If I was seriously ill for 6 months and my employer told me I had no holidays when I returned, I wouldn't stay there) or they are abusing the sick leave system in which case, there are avenues for the employer to go down in dealing with it. 

As slaps in the face go, I can live with it.


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## Purple (24 May 2014)

Sunny said:


> Of course you are dividing it. The legislation is such that ECJ judgements automaticaly get applied to the public sector. That's European Law. It's not Ireland deciding to be different or the public sector and trade unions milking the taxpayer.
> This ruling only affects long term sick leave as anyone only has to work 1365 hours in a hear to be entitled to 4 weeks holiday. That's about 26 hours per week. If someone is so sick that they can't work this, they either have a serious illness or injury and deserve to be supported by their employer (If I was seriously ill for 6 months and my employer told me I had no holidays when I returned, I wouldn't stay there) or they are abusing the sick leave system in which case, there are avenues for the employer to go down in dealing with it.
> 
> As slaps in the face go, I can live with it.


Direct Effect application at that level isn't EU Law, it's a president from a 1963 ECJ judgement and government have considerable discretion as to where it's applied if there is any ambiguity, no matter how small.  
One section of society pays for the T&C's of the other. That's not fair.
If your employer had been paying you for the six months you were out would you still expect holidays accrued when you got back?


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## Jim2007 (24 May 2014)

dereko1969 said:


> Bit surprised at you Purple, the reason the "protected sector" as you describe it "benefit" is because of the direct effect of the ECJ decision, not because public sector workers went looking for it. Was the ECJ case even an Irish case?



'Direct Effect' should either be for everyone or no one!  If this ruling did not apply to the public sector, I bet it would have been implemented be fore now...


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## astjan (24 May 2014)

Purple said:


> If your employer had been paying you for the six months you were out would you still expect holidays accrued when you got back?



I would. And I've seen that. It's all depends on employer and I think at the moment it's considered more 'company benefit'.


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## Purple (26 May 2014)

astjan said:


> I would. And I've seen that. It's all depends on employer and I think at the moment it's considered more 'company benefit'.



and yet after 6 months paid sick leave you can take your 2 weeks accrued holidays and then leave the job. More of a balance of rights and responsibilities between both parties perhaps?


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## astjan (26 May 2014)

Similar arrangements are already for maternity leave. Even after 6 months of maternity (or more) you're entitled to have your full annual leave. With my employer it was a choice between useing those days before maternity or after. More even - you're allowed to add to your contractual annual leave bank holidays that occurred while you were on maternity leave.


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## Sunny (26 May 2014)

Purple said:


> Direct Effect application at that level isn't EU Law, it's a president from a 1963 ECJ judgement and government have considerable discretion as to where it's applied if there is any ambiguity, no matter how small.
> One section of society pays for the T&C's of the other. That's not fair.
> If your employer had been paying you for the six months you were out would you still expect holidays accrued when you got back?


 
No they don't. There is numerous case law backing up the idea of vertical direct effect of directives as long as it meets come very simple criteria (as this does) i.e. The State has to be comply or people can rely on the EU Directive when they take action against the State or Public Bodies even if the Directive has not been passed into National legislation.

There is more controversary over the idea of horizantal direct effect where people are taking action against other individuals or companies and this is why the directive doesn't automatically apply to the private sector. National Legislation normally needs to be passed. Of course eventually the State will have to apply the legislation or else the ECJ is likely to rule that horizontal direct effect applies.

As for would I expect my annual leave entitlements if I was out sick for 6 months, then yes I would. I have worked for large non -unionised multinational companies that never adjusted annual leave entitlements for sick leave. Indeed, I have seen them give extra paid leave to people who had seriously ill family members. I am not saying this is the norm but it happens and this is in a very competetive part of the private sector.


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## Purple (26 May 2014)

Sunny said:


> No they don't. There is numerous case law backing up the idea of vertical direct effect of directives as long as it meets come very simple criteria (as this does) i.e. The State has to be comply or people can rely on the EU Directive when they take action against the State or Public Bodies even if the Directive has not been passed into National legislation.
> 
> There is more controversary over the idea of horizantal direct effect where people are taking action against other individuals or companies and this is why the directive doesn't automatically apply to the private sector. National Legislation normally needs to be passed. Of course eventually the State will have to apply the legislation or else the ECJ is likely to rule that horizontal direct effect applies.
> 
> As for would I expect my annual leave entitlements if I was out sick for 6 months, then yes I would. I have worked for large non -unionised multinational companies that never adjusted annual leave entitlements for sick leave. Indeed, I have seen them give extra paid leave to people who had seriously ill family members. I am not saying this is the norm but it happens and this is in a very competetive part of the private sector.



I'm not a lawyer so I'm not going to get into a discussion about where precedent and case law become immutable but I wouldn't take a case on that basis.
I work in a company, SME sector, where we pay medium to long term sick pay for people who have been here for a medium to long time. I have no problem with that. 
I do have a problem with it for people who have been out for many months or even years and are doing all they can to stay out. Please don't tell me that that doesn't happen in large organisations and please don't tell me the rest of us aren't paying for it. Giving holiday pay as well just puts the tin hat on it.

I have a problem with these things being automatic rights, especially when it is almost impossible to get rid of underperforming or incompetent employees.


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