Posts Tagged ‘Legal Updates’

Changes to Maternity Benefit and Maternity Leave

Monday, February 19th, 2018

Changes announced in December 2017 will take effect from 1 October 2017, where Maternity Benefit is payable for an extra period after the end of the normal 26 weeks maternity leave in the event of a premature birth. Maternity Leave is also extended for this extra period. The extension corresponds to the time period between the baby’s actual birth date and the expected start date of Maternity Leave and Maternity Benefit.

In order to claim this additional time for your leave and benefits there are a few steps that need to be taken:

  1. Send the Department of Employment Affairs and Social Protection either a copy of your baby’s birth certificate or a letter from the hospital confirming the baby’s actual date of birth (which must be on or after 1 October 2017).
  2. In order to claim the extra Maternity Benefit, send the Department a letter from the hospital confirming the actual date of birth and the number of weeks’ gestation at which your baby was born, before the end of the first 26 weeks of Maternity Benefit. This information is required in order to ensure that you get your full entitlement. If you wish, you can provide all this information in your initial letter to the Department.

Obviously, it will be important to notify the employer of the additional leave that will be required, and entitlement to annual leave and public holiday leave will continue to accrue during this additional time.

Retirement Age questioned in recent High Court Case

Tuesday, November 14th, 2017

In the last few weeks, a High Court judgement served as a useful reminder that employers who have a proposed retirement age for employees must consider whether they are actually entitled to retire the employees at all. The case of Quigley v HSE is one to watch as the High Court has granted an interlocutory injunction to restrain the HSE from dismissing the employee who contended that he was not contractually required to retire at age 65.

This of course reminds us that having a contractual retirement age in the contract is an essential prerequisite. In this recent case, the HSE contended that the requirement to retire at age 65 had been implied into the contract of employment and that as a long-standing permanent officer of the HSE, he must have known that he had to retire at age 65, the statutory retirement age for permanent officers who joined the public health service at the time he did.

Of course the contractual retirement age even if it is stated as a mandatory retirement, can still be challenged to ensure there is no grounds for age discrimination or Unfair Dismissals under the Acts. Interestingly age discrimination claims are becoming the norm where the absence of a retirement age that is objectively justified, the employer can be exposed under the Employment Equality Acts in respect to enforcing the retirement of an employee based on age.

It is likely that there will be further reviews of this matter in 2018, when it may require legislative change.

Gender discrimination claim relating to Paternity Pay

Monday, October 16th, 2017

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.