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Gender discrimination claim relating to Paternity Pay

The SFA (Small Firms Association) this month highlighted an interesting case regarding The Paternity Leave and Benefits Act 2016.  The Act brought Ireland in line with many of our OECD neighbours and entitles new parents (other than the mother of the child) to two weeks paternity leave anytime within 26 weeks of birth or adoption placement. Employers are not obliged to pay employees who take paternity leave but employees may qualify for paternity benefit from the Department of Social Protection (DSP) if they have sufficient PRSI contributions.

In some cases, an employee’s contract of employment could provide for additional rights to payment by the employer during the leave period, so that, for example, the employee could receive full pay less the amount of Paternity Benefit payable – however this additional payment by the company is discretionary but if it forms part of the contractual terms and conditions then it is an entitlement.

In a case taken to the Workplace Relations Commission recently, the question of whether an employer would be obliged to ‘top up’ paternity leave if they already had a practice of providing a maternity leave ‘top up’ was raised.

Area manager vs a public-sector transport company

The complainant, an area manager with a public-sector transport company, became a parent a few months after the company had issued a memo advising employees of the newly introduced legal entitlement to statutory paternity leave. The existing company’s discretionary paternity leave scheme (which had provided for 3 days leave) was being terminated. The memo, issued by the transport company’s HR Department, stated that employees availing of the newly introduced paternity leave would receive payment from the Department of Social Protection (DSP). However, the claimant did not have sufficient PRSI contributions and, as such, was not entitled to payment from the DSP.

The complainant argued that, as a new male parent, he was treated less favourably to a new female parent. He maintained that as female employees were entitled to paid maternity leave, topped up by the employer, there was a case for gender discrimination on that basis.

Interestingly, on hearing the case, the Adjudicating Officer (AO) described the area manager’s equation of paternity leave with maternity leave as ‘misplaced’. Noting the special protection afforded to women in connection with pregnancy and maternity that is embedded in Irish and European law, he said an employer is ‘entitled to make special provision for women at the time of maternity leave and is protected in that regard by the (equality) legislation under which the complainant was brought’.

 The fact that the company withdrew its 3-day paternity leave provision without notice was observed by the AO as an IR issue that should have been handled better by the company.

Based on his findings the AO found that the complainant had failed to establish some prima facie of discrimination on the grounds of gender with regard to conditions of employment. His findings showed that the employer is entitled to make special provision for women in connection with pregnancy, and that maternity leave is different to paternity leave. The complainant therefore failed.

As a reminder, if you are considering taking paternity leave, you should apply at least 4 weeks prior to starting (12 weeks advised if you are self-employed). You can apply online at www.mywelfare.ie with a valid public services card.

For further information and rules of eligibility visit Citizens Information.

Voltedge advises and supports clients on all HR issues including management of all leave types. For further information, please contact Kate Siberry, at admin@voltedge.ie.

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