Complainant

Respondent

Anonymised Parties

Claims Analyst

Insurance Company

Representatives

Arthur Cox

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994

CA-00035197-001

12/03/2020

The complainant contends she had continuous service with the respondent which entitled her to be paid the respondent’s full maternity benefit. The respondent says the complainant started a new job with them and did not have the necessary service to avail of the respondent’s maternity benefit at the start of her maternity leave.

The complainant started working for the respondent in October 2003. In 2015 there was a transfer of undertaking and the complainant carried out the same role, had the same reporting arrangements and stayed on the same terms and conditions of employment. She considered she was still an employee of the respondent. In 2019 she had a number of meetings when she was advised she was at risk of redundancy. She applied through the internal email for a different role with the respondent in a different location. She was successful and started the new job on 21 October 2019. She assumed she carried her previous service with her. However, in December she advised the respondent she was pregnant and was told she did not have one year’s service and would not be entitled to the receive the respondent’s maternity benefit’s until 21 October 2020.

The complainant submits the respondent contravened the Maternity Protection Act by not recognising her service and therefore not paying the maternity benefit to which she was entitled.

The respondent submits the complainant was an employee of theirs until, along with a number of other employees, she became an employee of another company following a transfer of undertaking. On 9 September 2019 she applied for a Claims Analyst role with them in another office through the respondent’s external recruitment inbox. She was interviewed on 18 September and on 25 September was offered the job by email. Attached to the email was an offer letter for the complainant to review. She replied saying “I have read the attached contract and fully understand all information contained.” The complainant started work for the respondent on 21 October 2019.

On 14 February 2020 the complainant emailed Ms A in HR to inform the respondent of her pregnancy. This was acknowledged by Ms B and she noted the company policy which states an employee must have one year’s service in order to qualify for maternity benefit. Ms B met the complainant on 19 February and was advised that due to her length of service she would not be entitled to the company maternity payment. She was told that this employment with respondent was unrelated to her previous employment and there was no continuity of employment.

The issue was raised again in March and the complainant was advised as to the service requirement and that she would receive maternity pay, under their scheme, from 20 October 2020. In May 2020 the complainant contacted the Head of HR who responded “As you would qualify for Company subsidised maternity pay in October 2020, I had requested Ms B look at this point and advise me of the financial impact from when you commence maternity leave and reach the qualifying period for maternity payment. The amount effectively equates to approximately €2,300. In recognition of both the covid situation we are all facing and to recognise our commitment to all staff we will, as a gesture of goodwill, make this discretionary one-off payment.” The complainant replied and expressed her disappointment that, as she viewed it, her length of service was not being recognised. The complainant commenced her maternity leave on 22 July 2020.

The respondent submits they have not denied the complainant’s right to maternity leave as set out in section 8 of the Maternity Protection Act. However, she did not have the requisite service to qualify for payment under their maternity benefits provisions.

I have considered all the evidence, both written and oral provided in relation to this claim under the Maternity Protection Act. Section 8 of the Act states:

“(1) Subject to this Part, a pregnant employee shall be entitled to leave, to be known (and referred to in this Act) as ‘maternity leave’, from her employment for a period (in this Part referred to as ‘the minimum period of maternity leave’ of not less than —

(a) 26 consecutive weeks, or

(b) 26 weeks part of which is postponed in accordance with section 14B,

as may be appropriate.”

There was never any dispute the complainant would be allowed to take maternity leave in accordance with the act. The complaint is about the payment of maternity benefits under the respondent’s own scheme. However, the Act contains no statutory obligation on an employer to pay an employee during her maternity leave. Therefore, I find the complainant must fail and is not well founded.

If this complaint had been in relation to payment of maternity payments under the respondent’s scheme, I note that because of her change in employment the complainant did not have the requisite service to qualify until 21 October 2019. I further note that, in a gesture of goodwill, the respondent ensured the complainant received a payment which ensured she suffered no financial loss because of her lack of service.

For the reasons given above I find that this complaint under the Maternity Protection Act 1994 is not well founded.

Maternity Protection Act, payment during maternity leave