Complainant

Respondent

Anonymised Parties

A Mechanic

A Transport Provider

Representatives

SIPTU

Byrne Wallace Solicitors

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-00008299-001

22/11/2016

The respondent employs the complainant as a mechanic since the 10th of January 2001. He is paid €736.60 per week. The complaint concerns an allegation that the complainant has been discriminated against on the ground of gender in respect of his entitlement to paternity leave. The parties made written and oral submission to the hearing.

The respondent submits that he took two weeks paternity leave beginning on the 19th of September 2016 and claimed two weeks state paternity benefit in respect of that period. The respondent does not pay wages for periods of paternity leave and furthermore requires that individuals availing of such leave pay their own and the companies contribution to the occupational pension scheme. In this case the complainant suffered a net loss of €1,204.20. The respondent provides a contractual maternity benefit scheme, whereby eligible employees receive full pay (inclusive of state maternity benefit) for a 26-week period. He submits that the difference constitutes either indirect sex discrimination or a breach of his entitlement to equal treatment.

s. 22 (1) (a) of the Act provides that Indirect discrimination occurs where an apparently neutral provision puts persons of a particular gender (being A’s or B’s) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.                s. 22 (1) (b) of the Act provides that Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to (including A or B), unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.                                                                                                                         The complainant submits that the provision is not objectively justified and moreover that the pay discrimination which excludes the male sex from an opportunity to assist in the provision of child care and support to the mother is both disproportionate and unnecessary. He alludes to the negative and harmful social effects which should be considered in any consideration of ‘objective justification’ pointing out that only 23% of males’ avail of the state paternity benefit. If this argument falls then he relies upon the provisions set out at s. 19 (4) (a) of the Act whichconcerns ‘entitlement to equal remuneration’ as follows – Indirect discrimination occurs where an apparently neutral provision puts persons of a particular gender (being A’s or B’s) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.                 s. 19 (4) (b) of the Act provides that - Where paragraph (a) applies, the persons referred to in that paragraph shall each be treated for the purposes of subsection (1) as complying or, as the case may be, not complying with the provision concerned, whichever results in the higher remuneration, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.  

The complainant seeks an order for compensation in the form of arrears of remuneration, an order for equal remuneration from date of referral of the herein complaint or an order for equal treatment and an order for compensation and an order that the respondent would cease discrimination in respect of pay between persons taking maternity leave and those taking paternity leave.                                                                                                                     

The respondent submits that it provides a maternity pay scheme where eligible employees have their statutory maternity benefit topped up for a period of 26 weeks. The additional 16-week period available is treated as a period of absence and employees are obliged to pay their own and the respondent’s contribution to the pension scheme (over a period of 12 months). The respondent has fulfilled its statutory obligations under the Maternity Protection Act, 1994 (as amended) and the Paternity Leave and Benefit Act, 2016.                                                                                                              s. 26 (1) of this Act provides for exceptions in respect of differing treatment concerning pregnancy and maternity as follows – 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. ‘Top up’ pay as provided to female employees during the first 26 weeks following pregnancy is comprehended within the exception and the provision of extra pay during maternity leave is clearly “in connection with pregnancy and maternity”.

The respondent submits that the recast directive 2006/54/EC clearly distinguishes maternity and paternity leave and it does not provide for the payment of ‘top up’ pay or pension contribution for an employee on paternity regardless whether such payments are made to an employee on maternity leave. The respondent relies upon a recent decision in ADJ-00006382 based on similar facts to advance its argument.

I find that the payment of ‘top up’ pay during maternity leave in contrast to the non-payment of ‘top up’ pay during paternity leave is comprehended within the exception to the general rules covering discrimination provided for in s. 26 (1) of the Act. Therefore, the complaint must fail.

The complaint is not well founded.