Complainant

Respondent

Parties

Melissa  Daly

Life Style Sports Ltd

Representatives

Cian Beecher of Arthur Cox

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00055431-001

07/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00055431-002

07/03/2023

The complainant has made a complaint of discrimination on the grounds of gender and family status in relation to her conditions of employment and a complaint under the Terms and Conditions of Employment (Information) Act both relating to what she alleges was a change in sick leave provision.

The complainant started working for the respondent on 28 March 2016. Prior to November 2022 she contends she was paid for all absences of sick leave. In November she says that she was not paid for three days sick leave. She says she followed the same procedure as usual, when she informed her manager. She asked HR why she had not been paid and was informed that her contract does not provide for an entitlement to paid sick leave and previous sick leave was paid on a fully discretionary basis. She was also informed that there may have been occasions when they were not informed of instances of sick leave therefore deductions had not been made.

The complainant replied to say that she considered that sick pay had become part of her contract through custom and practice. She also said that she had always notified her manager of each sick leave. She further requested that the three days be paid.

HR replied that there had been inconsistencies with the approach to date and the three days will be paid. However, HR also stated that any further absences would be unpaid. When the complainant queried this HR replied that there is no company sick pay scheme. Further correspondence showed there had been inconsistencies in the reporting of sick leave. HR agreed to allocate the complainant one week sick leave per year, which they said was an additional benefit for the complainant and not as unilateral change for all members of the Brand Centre. Her contract would be amended accordingly.

The complainant rejected the offer and said she did not agree to any change to her contract and asked for a continuation of what had occurred over the previous years; that all her sick leave was paid. She also said she was aware of long-standing Brand Centre employees who have been getting all sick leave paid. HR replied that no individual has an entitlement to unlimited sick leave and the maximum contractual entitlement is 2 weeks.

On 6 January 2023 the complainant emailed a formal grievance to HR setting out her belief that she was entitled to have all sick leave paid in accordance with custom and practice. She also said she had been treated differently and less favourably to a male colleague (LS) who had not been informed he would no longer receive paid sick leave. She asserted this treatment may amount to gender discrimination. She had a grievance meeting on 18 January with an outside third party. She raised issues that she considered discriminatory in relation to a previous pregnancy. When covid struck she was made to take annual leave for that year and the following year before she went on maternity leave. Thus, losing out on annual leave when she returned from maternity leave. The investigation report confirmed the respondent paid sick leave on a compassionate case by case basis. Her claim of discrimination was not upheld.

At an Outcome Meeting with a Senior HR consultant the complainant said she did not think the investigation was thorough or comprehensive. Her grievance was not upheld.

The complainant appealed the decision but this was not upheld.

The complainant submits she suffered discrimination when her entitlement to sick leave was changed and had referred to a comparator (LS) and she was not notified of this change to her terms and conditions of employment.

The respondent raised a preliminary issue that I have no jurisdiction to investigate these complaints as the complainant became resident in Northern Ireland in 2017. Since 2018 she has been employed in that jurisdiction, paid in sterling and employed under the UK tax and social welfare system.

The respondent submits the complainant was not discriminated against and there has been no change to her terms of employment. The respondent operates a fully discretionary sick pay policy, which has been applied equally to male and female members of staff and to employees with and without families.

The respondent says their sick pay policy states “sick pay is not a statutory entitlement. Individual Terms and Conditions of Employment refer to employees’ sick pay entitlement. Processing sick pay is at the discretion of the Company and may be removed or amended accordingly.” Therefore, no employee had a right to sick pay unless this was explicitly stated in their contracts of employment. They did pay sick leave to employees on a case by case and wholly discretionary basis. There have been cases where this discretion has been exercised on humanitarian grounds to pay employees for longer periods based on their personal health circumstances.Certain senior employees did have contractual rights to sick pay (2 weeks sick pay at Head of Function and senior manager levels).

The complainant’s contract is explicit that she has no entitlement to sick pay. The complainant cannot seek to override this express written term with an implied term and she cannot imply a right to uncapped and unlimited sick pay, which is what she appears to contend.

The complainant was not paid for three days sick leave in November 2022 and she queried why she had not been paid. She asserted her belief that she had always been paid for periods of sick leave in the past and by reason of “custom and practice” the respondent had created an implied term. The respondent acknowledged inconsistencies had arisen in relation to the operation of sick pay and confirmed the complainant would be paid for the three day absence in question. As such, the issues raised by the complainant had been resolved before her complaint to the WRC had been lodged.

Following further correspondence the respondent offered to amend the complainant’s contract to provide her with a right to one week’s paid sick leave per annum. If accepted this would have been more beneficial that the existing discretionary policy. The complainant rejected this offer and requested agreement that all her sick leave was paid. This could not be agreed to.

The complainant raised a formal grievance and this was heard by an independent external HR Consultant. The outcome confirmed the respondent does not have a blanket Sick Pay Policy in place and it is paid on a case by case basis. Her claim of discriminatory treatment was rejected. The complainant appealed the outcome and this was also rejected.

Preliminary Issue: the respondent raised the issue that the complainant lived in Northern Ireland and was paid in sterling. Therefore they contended she was subject to local employment law in Northern Ireland. When it was agreed she could live in Northern Ireland and continue working for the respondent, the respondent wrote “your terms of employment with Life Style Sports will continue to be governed by the laws of Ireland (ROI) and you continue to submit to the jurisdiction of the Irish Courts (ROI)”. The respondent said this may have been the intention at the time but it has been superseded by time and was an incorrect statement of applicable law.

The complainant and respondent both agreed for the complainant to live in Northern Ireland and continue to work for them. This includes visiting stores in Ireland. I do not see how the respondent can now back track on that agreement as it would effectively undermine the contract between the parties. I find that I have jurisdiction to investigate these complaints.

Substantive Issue: these complaints are based on a payment for sick leave issue that arose in November 2022 and was referred to the WRC on 7 March 2023. Any other previous incidents referred to by the complainant are not related and as such would be outside the time limits for making a complaint.

In November 2022 the complainant was on sick leave for three days and these days were deducted from her pay. She asked why and was told the respondent’s sick leave policy was discretionary. The respondent did change their decision in relation to the three days. In the ensuing correspondence and grievance procedure the complainant said she had always been paid for sick leave and by “custom and practice” this had become an entitlement. The respondent repeated that their sick leave policy was discretionary and no entitlement to paid sick leave existed.

It came out that the complainant was previously paid for all her sick leave apart from one day. It also appears that her manager probably did not report all her sick leave to HR. If he had then it is possible this issue may have arisen before November 2022.

The complainant’s contract is clear in that she has no entitlement to payment for sick leave. The respondent says she benefited from their discretion to pay most of her sick leave. It is, however, clear to me that the respondent did not change her terms of employment; they operated in accordance with their sick leave pay policy.

The complaint of discrimination is based around a male colleague who the complainant says was treated differently than she was. The complainant says he received pay for all his sick leave and was not advised that he would not be paid for future sick leave. In direct evidence the comparator (LS) confirmed he had been paid for all sick leave, including one period 8 weeks. He also confirmed he was aware of the respondent’s discretionary policy.

LS was paid for a long period of sick leave and was not advised he would not be paid for any sick leave. However, he aware of the discretionary policy. On face value he was treated in accordance with the respondent’s policy, as was the complainant. The use of a discretionary policy means that people are treated differently; some get paid when they are on sick leave and others do not. However, I have been given no evidence that the complainant was treated because of her family status or gender.

For the reasons given above I find that the complainant was not discriminated against on the grounds of gender and family status in relation to conditions of employment.

For the reasons given above I find that the complaint in relation to the Terms of Employment (Information) Act is not well founded.