ADJ-00006382

ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00006382

Parties:

Complaint(s):

Date of Adjudication Hearing: 05/05/2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and 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

Summary of Complainant’s Case:

The complainant states that he is being discriminated against by his employer due to the fact that he is male. His employer is treating males and females differently in relation to statutory leave, in particular Paternity Leave. Females when on maternity leave, who are in receipt of the state maternity benefit have that benefit topped up by the respondent to 100% of their salary. That is not the case for fathers availing of paternity leave. Furthermore, the respondent pays both the employees and employers pension contribution during maternity leave but does not do so for males availing of paternity leave.

The complainant’s wife became pregnant in April, 2016. The baby was born in January, 2017. The complainant made enquires in relation to Paternity leave in October, 2016. He was informed that he was not entitled to have his pay topped up and that he had to cover both the employer and employee pension’s contribution for the relevant period. He wrote several times complaining, however, he did not receive a reply. In April, 2017 he received the revised paternity scheme. At present the respondent will top up his salary to 100% for a period of three days and will pay the employer and employee pension contribution for those three days.

The complainant argues that Paternity Leave and Maternity Leave are comparable and equivalent under the legislation and should be treated in the same way when it comes to equal terms during both periods.

He states that the following legislation lends itself to the argument that maternity leave and maternity leave are comparable.

Section 15(2) of Paternity Leave and Benefit Act 2016 states that the transferred paternity leave is to be taken immediately after the end of the maternity leave (before additional maternity leave).

Section 14(a) of the Maternity Protection Act 1994 (Amended) states that “additional maternity leave to is commence immediately after the end of maternity leave and, where applicable, any period of transferred paternity leave taken by her”.

Section 14A(5) of the Maternity Protection Act 1994 (Amended) states “a reference to the last 4 weeks of maternity leave shall, in the case of an employee who takes transferred paternity leave, be construed as a reference to the last 2 weeks of maternity leave and the period of that transferred paternity leave”.

Section 16 deals with the Entitlement of employed father to leave on death of mother. In this section the entitlement of the father to avail of transferred maternity leave is treated in the exact same way as transferred paternity leave as outlined above

It is argued that Paternity Leave & Benefit Act was introduced in recognition of the changed role of the father in the life of a new born and his role and responsibilities in the family. To infer that this is of lesser importance to that of the mother’s infers that it is the mother’s place in the home and the father’s place in the workplace. This viewpoint discriminates against both genders.

Summary of Respondent’s Case:

The Respondent denies that the Complainant has been subjected to discrimination on the grounds of gender, contrary to section 6 of the Employment Equality Acts 1998 - 2015 as alleged, or at all. The Respondent maintains that the Complainant was lawfully and properly treated at all times and was not discriminated against on the grounds of gender.

Since the birth of his child in January 2017, the Complainant in this case has not taken statutory paternity leave as provided for in the Paternity Leave and Benefit Act 2016.

Prior to the introduction of the Paternity Leave and Benefit Act 2016, the Respondent provided three days paid paternity leave to employees. From September 2016 to February 2017, the three days paid leave was not provided as the respondent was considering whether or not to maintain that payment where statutory leave had been introduced. However, since February 2017 the three days paid leave has been re-introduced. The Respondent has also allowed any employees who took statutory paternity leave during this period to claim back an additional three days annual leave. For the duration of the two weeks statutory leave, the employee pays the employee share of pension contributions and the company pays its share.

Statutory maternity leave is provided under the Maternity Protection Act 1994 (as amended). This provides for 26 weeks maternity leave, for which Maternity Benefit may be claimed, and a further optional 16 weeks additional maternity leave for which Maternity Benefit may not be claimed.

The Respondent operates a maternity pay scheme where eligible staff members have the State Maternity Benefit “topped up" to meet their basic pay over the maternity leave period of 26 weeks. No "top up” or additional payment is provided during the 16 week additional maternity leave. Essentially, the additional maternity leave is treated as unpaid leave.

Employees availing of the additional maternity leave must pay their own pension contributions for the duration of any unpaid leave taken. The company allows employees who plan to avail of the additional maternity leave to spread these pension contributions over one year on their return to work.

Section 6(1) of the Paternity Leave and Benefit Act 2016 outlines an employer's obligations regarding the provision of paternity leave:

Subject to this Part, an employee who is a relevant parent in relation to a child shall be entitled to 2 weeks’ leave from his or her employment, to be known (and referred to in this Act) as “paternity leave”, to enable him or her to provide, or assist in the provision of, care to the child or to provide support to the relevant adopting parent or mother of the child, as the case may be, or both.

During this two week period, the employee may qualify for Paternity Benefit from the Department of Social Protection, if the employee has sufficient PRSI contributions. The standard Paternity Benefit up to 13 March 2017 was €230 per week, rising to €235 after this date.

The Respondent fulfils its statutory responsibility to employees by providing 2 weeks paternity leave.

There are Exceptions in Connection with Pregnancy provided for by Section 26(1) of the Act which expressly provides for exceptions to differing treatment in connection with pregnancy and maternity:

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 submits that the “top up” of pay provided to female employees in the first 26 weeks following pregnancy falls under this exception.

Section 26(1) of the Act gives effect to Art 2(3) of Council Directive 76/207/EEC (now Art 28(1) of Directive 2006/54/EC), which states that:

This Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity.

The application of Article 28(1) of this Directive has been considered by the European Court of Justice in a number of cases. It has held that different treatment afforded to pregnant women and those who have just given birth is justified as long as it is protecting a woman’s needs in respect of her health and her relationship with her child.

The fact that statutory maternity leave is closely connected with pregnancy and childbirth is underlined by the fact that following 26 weeks paid leave, an additional 16 weeks unpaid leave may be taken.

It is notable that the State does not provide any State Benefit for this additional maternity leave and, in addition, the respondent does not subsidise this additional maternity leave. This indicates that the intention of maternity leave under the Maternity Protection Act is the protection of the health and wellbeing of the mother, by providing her with financial support to prevent her being forced to return to the workplace before recovering fully from the effects of childbirth.

Paternity leave is optional and under section 8(1) of the Paternity Leave and Benefit Act 2016, may be taken at any time in the period between the date of birth or adoption of the child and 26 weeks from this date. This contrasts with section 10(1) of the Maternity Protection Act 1994 as amended, which stipulates a minimum period of maternity leave being not later than two weeks before the end of the expected week of confinement, and shall end on such day as she selects, being not earlier than four weeks after the end of the expected week of confinement.

The compulsory nature and time frame of maternity leave again points towards the intention of the legislature to protect the health of the mother, and is clearly closely connected with pregnancy and childbirth.

The Respondent submits that in the provision of extra pay during maternity leave, the different treatment is clearly “in connection with pregnancy and maternity”, and the Respondent clearly falls into the exception provided for under section 26(1) of the Act.

The recast directive 2006/54/EC expressly refers to paternity leave as distinct from maternity leave in recitals 26 and 27 which provide:

(26) In the Resolution of the Council and of the Ministers for Employment and Social Policy, meeting within the Council, of 29 June 2000 on the balanced participation of women and men in family and working life (14), Member States were encouraged to consider examining the scope for their respective legal systems to grant working men an individual and non‐transferable right to paternity leave, while maintaining their rights relating to employment.

Maternity leave and paternity leave are clearly distinguished. Article 16 of the recast directive provides:

Paternity and adoption leave:

This Directive is without prejudice to the right of Member States to recognise distinct rights to paternity and/or adoption leave. Those Member States which recognise such rights shall take the necessary measures to protect working men and women against dismissal due to exercising those rights and ensure that, at the end of such leave, they are entitled to return to their jobs or to equivalent posts on terms and conditions which are no less favourable to them, and to benefit from any improvement in working conditions to which they would have been entitled during their absence.

There is no obligation in the recast directive to pay top up pay or pension contributions for an employee on paternity leave, whether or not such payment and contributions are paid to an employee on maternity leave.

Findings and Conclusions:

The complainant alleges that he is being treated less favourably than his female colleagues in relation to how both are treated financially during periods of paternity leave and maternity leave.

The relevant legislation is as follows:

Section 6.(1) Employment Equality Act, 1989,

For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

6. (1) paternity Leave and Benefit Act, 2016,

“Subject to this Part, an employee who is a relevant parent in relation to a child shall be entitled to 2 weeks’ leave from his or her employment, to be known (and referred to in this Act) as “paternity leave”, to enable him or her to provide, or assist in the provision of, care to the child or to provide support to the relevant adopting parent or mother of the child, as the case may be, or both.”

8. (1) Paternity Leave and Benefit Act, 2016

Subject to this section, section 10 and sections 12 to 14 , the period of paternity leave shall commence on such day as the relevant parent selects in his or her notification given in accordance with subsection (2) or (5) of section 7 , being not earlier than the date of confinement or day of placement, as the case may be, and not later than 26 weeks after such date or day

Section 10 (1) Maternity Protection Act, 1994

Subject to subsection (2) and sections 11 to 13 , the minimum period of maternity leave shall commence on such day as the employee selects, being not later than four weeks before the end of the expected week of confinement, and shall end on such day as she selects, being not earlier than four weeks after the end of the expected week of confinement.

26. -- (1) Employment Equality Act, 1998

“ 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.

(2) This Act does not apply to discrimination on the gender ground in employment which consists of the performance of services of a personal nature, such as the care of an elderly or incapacitated person in that person's home, where the sex of the employee constitutes a determining factor.

Both the Maternity Protection Act 1994 (as amended) and the Paternity Leave and Benefit Act 2016 provide for State Benefits to be paid to qualifying employees during the respective leave periods. Employers are not statutorily obliged to provide any additional pay during these leave periods. The respondent operates a maternity pay scheme where eligible members have the state maternity benefit topped up top meet the employee’s basis pay whiles on her 26 weeks period of protected leave. No top is provided for the additional 16 weeks leave should the employee choose to take it. During that additional 16 weeks period female employees must pay their own pension contributions. In relation to male employees, the respondent’s position has changed on a number of occasions in the recent past. Since February 2017 the three days paid leave has been re-introduced. The Respondent has also allowed any employees who took statutory paternity leave during this period to claim back an additional three days annual leave. For the duration of the two weeks statutory leave, the employee pays the employee share of pension contributions and the company pays its share.

The complainant states that he is being treated less favourably than females due to the fact that during their maternity state benefit is topped to up to meet their basic salary whilst on their 26 weeks statutory maternity leave and his paternity leave is only top up for three days out of a total ten days. Furthermore, for the remaining seven days he, because he is male, has to make the pension contribution for both employer and employee.

The complainant states that maternity leave and paternity leave are essential granted for the same reasons i.e. to bond with the child. Whilst I accept that bonding with one’s child is as important for mother and father, it is not sole reason for such leave.

The case of Hoffman v Barmer Ersatzkasse [1984] ECR 3047 The ECJ held that the woman’s entitlement to additional maternity leave after a period of 8 weeks following the birth of her child was a measure of protection for her in connection with the effects of pregnancy and motherhood and as such fell under the derogation provided for in the Directive.

The Court stated at paragraph 25:

“It should further be added, with particular reference to paragraph (3), that, by reserving to member states the right to retain, or introduce provisions which are intended to protect women in connection with “pregnancy and maternity “, the directive recognizes the legitimacy, in terms of the principle of equal treatment, of protecting a woman’s needs in two respects. First, it is legitimate to ensure the protection of a woman’s biological condition during pregnancy and thereafter until such time as her physiological and mental functions have returned to normal after childbirth; secondly, it is legitimate to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth, by preventing that relationship from being disturbed by the multiple burdens which would result from the simultaneous pursuit of employment.”

Statutory maternity leave has a mandatory minimum period. Statutory paternity leave has not. Paternity leave is optional. Maternity leave is linked closely in time to the birth of the child, paternity leave can be taken at any stage over the 26 weeks period. As is stated in the Hoffman case the reasons for maternity leave are twofold. Firstly, it is to ensure the protection of a woman’s biological condition during pregnancy and thereafter until such time as her physiological and mental functions have returned to normal after childbirth. Males, by virtue of their biological make are excluded from this reasoning. Secondly, it is legitimate to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth. In relation to this reason I agree with the complainant that there could be an argument made for both males and females.

Whilst one could argue the purpose/s of paternity leave at length and compare and could compare and contrast those purposes with maternity leave at nauseam, the fact of the matter is, males cannot conceive a child, carry a child or give birth to a child and therefore the comparators identified by the complainant are not proper comparators in law.

Furthermore, the law provides an exception to the general rules in relation to discrimination on grounds of gender. Section 26 of the Employment Equality Act makes it very “clear that nothing in the 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”. I find that this matter falls squarely within the exception. It is on that basis, together with the lack of an appropriate comparator that the complainant’s case fails.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

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.

The complainant's case fails.

Dated:   11^th July 2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly