Paternity Leave
Cases
ADJ-00005771
Area Manager v Transport Company
Complaint(s):
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-00007973-001
03/11/2016
Date of Adjudication Hearing: 27/06/2017
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The background to the dispute arises from measures taken by the respondent in relation to the implementation of legislation governing Paternity Leave which became effective in September 2016. The complainant’s issue was that the implementation of these measures meant that he, as a male about to become a parent, was being discriminated against on the grounds of gender insofar as a female employee in the same Social Welfare contribution category would receive a top-up of salary to full-pay whilst on Maternity Leave. No such provision would apply to the complainant whilst he was on Paternity Leave.
Summary of Complainant’s Case:
The complainant is a senior manager and is a Class D1 PRSI employee. He became a parent for the first time in January 2017.
On 20 September 2016 the respondent’s HR Dept. in a memo advised that legislation regarding Paternity Leave had become operative and that as a result the existing company scheme in this regard was being terminated. This scheme had provided for 3 days paid leave.
The memo stated that employees availing of this leave would receive payment from the Department of Social Protection only. Employees in Class D1 do not qualify for this payment.
Female employees who are on Class D1 contribution receive full salary from the respondent during the first 26 weeks of maternity leave.
The change in policy meant that the complainant was not entitled to any payment if he applied to take Paternity Leave. The complainant therefore applied in November for permission to carry over 5 days’ annual leave into 2017 to coincide with the expected birth of his child. This application was turned down.
The complainant was therefore unable to take two weeks leave as intended to coincide with the birth of his child.
The complainant was as a result treated less favourably as a new male parent compared to a new female parent.
The 3 days paid paternity leave was restored to male employees on 23 February 2017.
Summary of Respondent’s Case:
From September 2016 until February 2017 the respondent did not provide 3 days paid Paternity Leave as the continuation of that payment was under consideration following the introduction of statutory Paternity Leave. This payment was always classified and accepted as being discretionary.
In February 2017 the 3 days leave was re-introduced and any employees who took such leave during this period could claim back an additional 3 days leave. The complainant had not taken statutory Paternity Leave.
The respondent operates a scheme whereby eligible staff members have the State Maternity Benefit topped-up to meet their basic pay during the leave period of 26 weeks. This top-up does not operate during the 16 weeks additional Maternity Leave.
The respondent fulfils its statutory responsibility to employees by providing 2 weeks Paternity Leave.
The law provides for differing treatment for female employees in connection with pregnancy and maternity. This is reinforced by reference to the relevant Council Directive and European Court of Justice case law.
Findings and Conclusions:
The complainant is male and is employed as a senior manager with the respondent. Employment commenced in March 1995 and is on a full-time basis. As the complainant was recruited prior to April 1995 and worked in the public service his PRSI contributions are classed as D1. Class D1 contributors do not qualify for Paternity Benefit.
Statutory Paternity Leave was introduced in September 2016 under the Paternity Leave and Benefit Act, 2016. The respondent had operated a Paternity Leave scheme prior to that whereby employees with a minimum of 12 months service could avail of 3 days paid leave on or up to four weeks after the birth of the child. On 20 September 2016 the respondent’s HR Dept. issued a memo to managers announcing that a statutory Paternity Leave scheme had been introduced, giving details of same and advising that the existing scheme, which included 3 days paid leave, was being terminated with effect from 1 September 2016. The complainant was an expectant father at this time. The effect of this change on him was that he would now receive no payment if he applied to take Paternity Leave as planned at the birth of his first child.
The complainant was aggrieved at the effect that this decision would have on his own situation and which, in his opinion, was aggravated by a refusal by the respondent’s C.E.O. to allow him to carry over 5 days annual leave into 2017 for when his child was born. He outlined the steps undertaken by him in relation to these matters including seeking information under FOI requests. In the event the complainant took 3 days of annual leave at the time of the child’s birth in January 2017. The respondent had in the meantime carried out a re-think of its policy and on 23 February 2017 restored the 3 days paid leave. Under this restoration any staff that had in the interim utilised annual leave for the purpose of Parental Leave could apply for additional annual leave in this regard. It should be noted that the complainant lodged his complaint with the WRC on 3 November 2016.
The background that gave rise to this complaint appears to me to be a dispute about the manner in which a discretionary benefit was withdrawn without notice under the guise of a Work / Life Balance initiative and the negative impact that that had on the complainant at a very important time of his life. I note that this matter had been taken up with the respondent by a Worker Director who had advised in a bulletin dated January 2017 (which dealt with a number of issues) that the benefit would be restored. It therefore appears to me that the issue could be properly considered as an Industrial Relations matter which was the subject of appropriate procedures in that respect.
The complaint before me is, however, is of a specifically different character. It is to the effect that the complainant was discriminated against by reason of his gender in respect of conditions of employment. In particular the discrimination arose from the fact that the complainant, as a class D1 PRSI contributor, would receive no payment whilst availing of Paternity Leave as opposed to a female employee, also a D1 contributor, who would receive full payment from the respondent during the 26 weeks of her Maternity Leave. This is the complaint under the Employment Equality Acts, 1998 – 2015 that I have to consider.
The respondent’s policy on Maternity Leave specifies that “employees who are Social Welfare Class D1 and as such do not pay full rate PRSI will receive full salary during the first 26 weeks of Maternity Leave”. Section 4(3) of the Maternity Protection Act, 1994, states:
Nothing in this Act shall be construed as prohibiting any agreement from containing any provision more favourable to an employee than any provision in Parts II or VI.
The respondent’s policy is in line with this provision.
The complainant accepted that Maternity Leave cannot be equated to Paternity Leave but pointed out that this was reflected in the fact that the former was of 26 weeks length whilst the latter was for just 2 weeks. The respondent argued that there could be no comparison between the principal Maternity Leave and Paternity Leave but that if a comparison is to be made then it would be in relation to additional Maternity Leave to which no top-up arrangement applies.
Maternity Leave has its basis in extending protection to women in connection with pregnancy and maternity in recognition of the special circumstances occurring at that time. This is reflected in the European Directive 2006/54/EC which states:
This Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity.
Section 26(1) of the Employment Equality Act, 1998, states:
Nothing in this Act shall make it unlawful for an employer to arrange for or provide treatment which confers benefits on women in connection with pregnancy and maternity (including breast feeding) or adoption.
The respondent claims that the provision of a top-up of salary as outlined above is a measure which confers a benefit on women in connection with pregnancy and maternity.
Section 85A of the Employment Equality Acts, 1998 – 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only when these facts have been established and are regarded by the Adjudication Officer as sufficient to raise an inference of discrimination that the onus shifts to the respondent to rebut the inference of discrimination. The Labour Court (EDA 0917) has stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”
I have carefully considered all the points raised both by submission and by evidence. It is clear that the equation of Paternity Leave with Maternity Leave by the complainant is misplaced. The special protection afforded women in connection with pregnancy and maternity is embedded in both European and Irish law. The respondent is therefore entitled to make special provision for women at the time of Maternity Leave and is protected in that regard by the legislation under which the complaint was brought.
I do believe, however, that the manner in which the respondent initially dealt with the introduction on statutory Paternity Leave could have been better handled. The issues arising appear now to have been rectified, albeit too late to specifically cover the birth of the complainant’s child.
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Based on the finding that the respondent is entitled to make special provision for women in connection with pregnancy and maternity and that Maternity Leave is different to Paternity Leave, I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of gender with regard to conditions of employment. The complaint therefore fails.
Dated: 24/08/2017