Posts Tagged ‘paternity leave’

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.

Employment Law Update 2016

Monday, December 5th, 2016

As 2016 draws to a close, we look back at the last 12 months and share with you our review of some of the key employment law changes of the year.

National Minimum Wage Increase

With effect from 1 January 2016, the National Minimum Wage was increased from €8.65 per hour to €9.15 per hour. This increase was made following a recommendation from the Low Pay Commission (LPC) in 2015. The LPC was established as an independent statutory body in July 2015. Its primary function is to examine and make recommendations annually to the Government on the appropriate level of the NMW.

In January 2017, the minimum wage rate will rise to €9.25 per hour.

Justification of Retirement Age

The Equality (Miscellaneous Provisions) Act 2015 has introduced significant changes to retirement ages. Prior to the commencement of the Act (1 January 2016), the Employment Equality Acts 1998 – 2015 provided an employer with the ability to fix a compulsory retirement age, as set out in Section 34 of the Acts. This remains the case however, Section 34 of the act has been amended to align it with the Employment Equality Framework Directive 2000/78/EC. Therefore, employers are now required to be able to objectively justify their retirement age. The retirement age should seek to achieve a legitimate aim such as intergenerational fairness, and the means of achieving the aim should be both appropriate and necessary.

Furthermore, the amendment to s.6 of the 1998 Act means that employers must now objectively justify offering a fixed-term contract of employment to a person who has reached the organisation’s retirement age.

Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016

Under the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016, which came into effect on 29 April 2016, specified minor convictions will become spent after 7 years. This means that an adult convicted of an offence covered by the Act does not have to disclose the conviction (to a prospective employer for example) after 7 years, except in certain circumstances. The Act does not apply to any sexual offence, an offence that was tried in the Central Criminal Court, or an offence resulting in a prison sentence of greater than 12 months.

In the recruitment process many employers have required applicants to declare any previous convictions on their application forms. This Act will now restrict employers from asking for such declarations and employees cannot be penalised for non – declaration of spent convictions.

Paternity Leave

The Paternity Leave and Benefit Act 2016 commenced on 1 September 2016. The Act enables a “relevant parent” to take two weeks’ paternity leave which must commence within the first 26 weeks of the birth/adoption of a child. Subject to eligibility and notification criteria being met, paternity leave will apply to births/placements that take place on or after the 1 September 2016. During paternity leave, employees who have the necessary PRSI contributions and hold a Public Services Card are entitled to paternity benefit from the Department of Social Protection (€230 per week).

Get advice on Employment & Labour Laws in Ireland. Contact us now at 01-5252914 for your Paternity Leave policy or any other advice.

Margaret McCarthy, HR Consultant