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Exemption from obligation to pay statutory sick leave payment
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10. (1) The Labour Court may, in accordance with this section, exempt an employer from the obligation to pay an employee or number of employees statutory sick leave payment otherwise payable to them in accordance with this Act.
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(2) An exemption under subsection (1) shall be for a period not exceeding one year and not less than 3 months, and while it remains in force the employer accordingly need not so comply.
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(3) An employer or employer’s representative with the employer’s consent may, in the manner and form approved by the Labour Court, apply to the Labour Court for an exemption under subsection (1).
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(4) On receiving an application under subsection (3), the Labour Court shall convene a hearing of parties to the application and shall give its decision on the application in writing to the parties.
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(5) Subject to subsection (6), the Labour Court shall not grant an exemption under subsection (1) unless it is satisfied that—
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(a) where the employer makes an application under subsection (3), and that employer employs more than one employee, he or she has entered into an agreement with—
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(i) the majority of the employees,
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(ii) the representative of the majority of the employees, or
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(iii) a trade union representing the majority of the employees,
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in respect of whom the exemption is sought, whereby the employees, the representative of the employees or the trade union, consents to the employer making the application, and to abide by any decision on the application that the Court may make, and
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(b) the employer’s business is experiencing severe financial difficulties.
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(6) Notwithstanding subsection (5), where the Labour Court is not satisfied that the majority of the employees or their representative consents to an application under paragraph (a) of that subsection, the Labour Court may grant an exemption under subsection (1), provided the Labour Court is satisfied that—
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(a) the employer has informed the employees concerned of the financial difficulties of the business and has attempted to come to an agreement with the employees, their representative or trade union in relation to a proposed exemption from payment of statutory sick leave payment, and
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(b) the employer is unable to pay statutory sick leave payment to the employees, due to the employer not having the ability to pay or being unlikely to be able to pay, to the extent that, if the employer were compelled to pay there would be a substantial risk—
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(i) having regard to the number of employees employed by the employer, that a material number of those employees would be likely to be laid-off employment with the employer, or made redundant, or
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(ii) that the sustainability of the employer’s business would be significantly adversely affected.
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(7) The Labour Court shall establish its own procedures for the hearing of applications, and in relation to incidental matters to be dealt with, under this section.
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(8) The Labour Court shall maintain a register of all decisions under this section and shall make the register available for examination by members of the public at such place and reasonable times as it thinks fit.
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(9) No appeal shall lie from a decision of the Labour Court under this section except to the High Court on a question of law.
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