Precisely one year ago, in September 2016, the Paternity Leave and Benefit Act 2016 (the "2016 Act") introduced statutory paternity leave. The 2016 Act provides that new parents are entitled to two weeks' leave and, provided the employee has the requisite PRSI contributions, statutory paternity benefit.

On commencement of the 2016 Act, a number of employers sought to amend their policies regarding paternity leave. The question arose as to whether, by topping-up a female employee's pay during maternity leave, an employer would also be required to top-up a male employee's pay during paternity leave.

The recent decision of the Workplace Relations Commission (WRC) in the case of An Area Manager v A Transport Company ADJ-0000577 provides useful guidance in this respect.

The Adjudication Officer (AO) held that a practice by which an employer topped up employees' salaries to full pay during maternity leave but not during paternity leave did not amount to discrimination on the ground of gender under the Employment Equality Acts 1998-2015 (the "Employment Equality Acts").

The AO found that maternity leave was different to paternity leave and the transport company (the "Respondent") was entitled to make special provision for women in connection with pregnancy and maternity.

Facts

The Complainant was a senior area manager with the Respondent.

The Respondent initially operated a scheme whereby it provided three days paid paternity leave. On the commencement of the Paternity Leave and Benefit Act 2016, however, it circulated a memo advising employees that the legislation had resulted in the termination of the scheme. Staff were advised that those availing of paternity leave under the 2016 Act would receive the statutory paternity benefit only.

The Complainant, who was due to become a father, was not entitled to the statutory paternity benefit due to his D1 PRSI classification. Accordingly, he was not entitled to receive any payment during paternity leave and was therefore unable to take two weeks leave as intended.

With regard to female employees, the Respondent's policy provided that eligible staff members were entitled to have the statutory maternity benefit topped-up to meet their basic pay during the first 26 weeks of maternity leave. Female employees with D1 PRSI classification, who were not eligible for statutory maternity benefit, were entitled to their full salary during the first 26 weeks of maternity leave.

The Complainant issued a complaint on the basis that he, as a class D1 PRSI contributor, would receive no payment if he were to avail of paternity leave whilst a female employee, also a Class D1 PRSI contributor, would receive full pay from the Respondent during her maternity leave. The Complainant alleged he was being treated less favourably as a new male parent compared to a new female parent.

Decision

The AO found that the equation of paternity leave with maternity leave by the Complainant was misplaced. The AO stated that maternity leave is different to paternity leave and that "the special protection afforded to women in connection with pregnancy and maternity is embedded in European and Irish law".

In his decision, the AO referred to s.26(1) of the Employment Equality Acts which states that "[n]othing 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…".

The AO concluded that the Respondent was entitled to make special provision for women at the time of maternity leave and was protected in that regard by the Employment Equality Acts. The Complainant, therefore, failed to establish a prima facie case of discrimination on the grounds of gender.

Conclusion

The case is authority for the proposition that employers are not required to apply the same rules to maternity pay and paternity pay, given the special protection afforded with regard to pregnancy and maternity in European and Irish law.