In 2016, the Paternity Leave and Benefit Act 2016 (Act) came into force. The Act constituted a significant development in the area of employment rights with the introduction of two weeks’ statutory leave for fathers and other relevant parents to care for their new-born child.
While paternity benefit is payable by the Department of Employment Affairs and Social Protection subject to sufficient PRSI contributions, employers are not obliged to pay employees during paternity leave.
This has resulted in widespread debate amongst employers as to whether topping up salaries during maternity leave but not during paternity leave could amount to discrimination on the ground of gender under the Employment Equality Acts 1998-2015.
Up until recently, the consensus has been to treat employees availing of paternity leave in an equal manner to those taking maternity or adoptive leave.
In a recent case before the Workplace Relations Commission (WRC), An Area Manager v A Transport Company ADJ-0000577, the complainant argued that he was being discriminated against on the gender ground. This claim arose because he became aware that he would receive no pay from his employer during his paternity leave, while a female employee would receive full pay during maternity leave.
The employer had provided three days’ paid paternity leave prior to the introduction of the Act. When the Act came into force, the employer terminated this scheme and notified employees that they would receive statutory paternity benefit only.
The complainant was due to become a father but was not eligible for statutory paternity benefit due to insufficient PRSI contributions. This meant that he could not take leave from work. The employer’s female employees were entitled to 26 weeks’ pay during maternity leave. A key element in this case was that even where a female employee was not eligible for statutory maternity benefit because of insufficient PRSI contributions, the employer would pay full salary for 26 weeks of her maternity leave.
The WRC concluded that it did not constitute discrimination on the gender ground to top up salaries during maternity leave and not during paternity leave. The decision emphasised that the Irish legal system protects maternity leave to a very high standard and that it is different to paternity leave.
The WRC pointed to section 26(1) of the Employment Equality Acts 1998-2015 which provides that “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…”
This decision gives comfort to employers that paternity leave benefits do not need to be equated with maternity leave benefits in order to reduce the risk of a discrimination claim. However, it should be noted that this is the first time a challenge of this nature has been brought. As a result, employers should approach their policies and payment provisions with some caution.
In any event, we recommend that employers ensure that they have a clear paternity leave policy in place that deals with how employees can apply for paternity leave, whether it will be topped up, and any other relevant terms and conditions.