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.
Section 6 of the Paternity Leave and Benefit Act 2016 states:
|(2) Other than where section 12 applies, the period of leave referred to in subsection (1) shall comprise a single period of 2 weeks.
(3) Subject to subsection (4), only one person who is a relevant parent in relation to a child shall be entitled to paternity leave in respect of that child.
(4) Subsection (3) shall not operate to prevent paternity leave from being taken by a relevant parent referred to in paragraph (a) of the definition of relevant parent in section 2 (1) in respect of a child by reason only that paternity leave has prior to the adoption of the child, been taken in respect of that child by a person other than that relevant parent.
(5) Where the birth of a child is part of a multiple birth or a person adopts 2 or more children at the same time, a person who is a relevant parent in relation to the children concerned shall only be entitled to one period of paternity leave under this section in respect of the children concerned.
A 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 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 Adjudication Officer 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 of the Case:
The Complainant was a senior area manager with the Respondent.
The Respondent initially operated a scheme that provided three days paid paternity leave. However, it issued 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 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 during her maternity leave. The Complainant alleged he was being treated less favourably as a new male parent compared to a new female parent.
The Adjudication Officer found that the equation of paternity leave with maternity leave by the Complainant was misplaced. The Adjudication Officer 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 Adjudication Officer referred to section 26 (1) of the Employment Equality Acts which states 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…”.
The A Adjudication Officer 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.
Facts to note in the Act:
Notification to employer
As soon as reasonably practicable as but not later than 4 weeks before the expected week of confinement of the expectant mother concerned.
Must supply before the expected day of placement, if not already so supplied, with a copy of an applicable declaration of eligibility and suitability that the employed adopting mother or sole male adopter concerned, as the case may be, has supplied to his or her employer, as the case may be, under section 7(2) (c) of the Act of 1995, and
(b) in any other case, and where the expectant mother is not an employee, at the time of the notification or as soon as reasonably practicable afterwards cause his or her employer to be supplied with a statement signed by a registered medical practitioner confirming the pregnancy of the expectant mother concerned and specifying the expected week of confinement of the expectant mother concerned.
Must be retained by the employer concerned for a period of 8 years
Abuse of paternity leave:
Where an employer has reasonable grounds for believing that an employee of his or hers who is on paternity leave is not using the leave for the purpose specified in section 6 (1), the employer may, by notice in writing given to the employee, terminate the leave and the notice shall contain a statement in summary form of the grounds for terminating the leave and shall specify the day (being a day not later than the date of the end of the period of the leave specified in the notification given in accordance with subsection (2) or (5) of section 7 , section 13 (2) or 14 (2), as the case may be, nor, subject to the foregoing requirement, earlier than 7 days after the date of the receipt by the employee concerned of the notice) by which the employee must return to work.
Where an employer proposes to give a notice under subsection (1) or (3) to an employee of his or hers, the employer shall, before giving the notice, notify in writing the proposal to the employee and the notification shall contain a statement in summary form of the grounds for terminating, or, as the case may be, refusing to grant, the paternity leave concerned and a statement that the employee may, within 7 days of the receipt of the notification, make representation to the employer in relation to the proposal; and any such representations made by an employee to an employer within the period aforesaid shall be considered by the employer before he or she decides whether to give a notice under subsection (1) or (3), as the case may be, to the employee.
Burden of Proof
Where in any proceedings facts are established by an employee from which it may be presumed that there has been discrimination or indirect discrimination in relation to him or her, it shall be for the respondent to prove the contrary.
This section is without prejudice to section 6(6) of the Act of 1977 or any other enactment or rule of law in relation to the burden of proof in proceedings which may be more favourable to such an employee.