Complainant

Respondent

Anonymised Parties

Community Employment Scheme Supervisor

Community Employment Scheme

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-00024346-001

20/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00024346-002

20/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00024346-003

20/12/2018

The Complainant claims:

a. That her employer failed and/or refused to pay her maternity leave pay, to which she was contractually entitled, contrary to the Payment of Wages Act 1991;

b. That she was discriminated against by her employer on the grounds of her gender, in relation to her conditions of employment.

Claim reference CA-00024346-002 – that the Complainant was discriminatorily dismissed was withdrawn at hearing.

The Complainant commenced employment as a CE Supervisor with the Respondent in or around May 2014.   On or about 30 March 2016, the Complainant was furnished with and signed a Statement of Main Terms of Employment that stated:

“The Employee acknowledges that the DSP CE Project is governed by a system of funding and that the continuation of the Project is subject to the continuation of adequate funding”.

She was further required, at that time, to sign an additional document containing the following statement:

“I have read the employee handbook, understand its contents and accept that it forms part of my contract of employment”.

The same statement was again provided to the Complainant and signed by her on 30 January 2017.     The Company Handbook which accordingly forms part of the contract of employment, provides at paragraph 41 as follows:

“The Company recognises the importance of a healthy balance between work life and family life and will make provision for maternity/adoptive leave in accordance with the Maternity Protection Acts 1994.   Paid maternity leave is only available to employees who have completed 3 years continuous service with the Company”.

In or around 2016, the Complainant took her first maternity leave. She was not paid by the Respondent during this maternity leave and was informed by Manager C that she would not be paid as she did not have the three years’ service at that time. The Complainant did not dispute this as it was in accordance with the Company Handbook and accordingly her contract of employment.                   The Complainant became pregnant again in 2018. She expected to be paid for her maternity leave on that occasion, having in excess of three years’ service at that time, and being aware of other colleagues who had received such payment. On or about 9th May 2018, the Complainant met with Manager C to discuss her maternity leave. The Manager informed her that the Respondent did not have the money to pay her during her maternity leave, and she would discuss this further with the CEO.   Subsequently the CEO confirmed to the Complainant that her request for maternity leave pay was declined and she was entitled to take the matter further. Despite approaches from her trade union to invoke the grievance procedure, no meeting took place. The Complainant submitted notice of resignation on 19th December 2018, following expiry of her maternity leave, due to the Respondent’s unwillingness to pay her maternity leave and treat her equally.

The Payment of Wages Act 1991 provides for the definition of wages to include at Section 1

“(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument referable to his employment, whether payable under his contract of employment or otherwise…”

It is submitted that the Complainant had a contractual entitlement to be paid during her maternity leave. This entitlement, set out in the handbook, was an express term of the Complainant’s contract, being stated in the handbook and reiterated by the statement she was required to sign on at least two occasions, confirming that the handbook forms part of her contract of employment.   It is further submitted that maternity pay is expressly included in the definition of wages contained in Section (1) of the Act.   Furthermore, the Respondent’s failure to pay it constituted a prohibited deduction within the meaning of Section 5 (1) and Section 5 (6).                                                                     It is of note that the CE scheme rules do not prohibit payment of maternity leave pay, but merely make reference to the grant support available. It is submitted that having entered into a contract with the Complainant to pay maternity leave pay, it was not open to the Respondent to refuse to pay it, whether or not it was covered by a particular funding stream.   In this case, the Respondent elected to pay maternity leave to some staff with three years’ service or more.    

Complaint pursuant to the Employment Equality Acts

The Complainant claims that she was discriminated against in relation to her conditions of employment.   The second recital to Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive) stated:

“(23) It is clear from the case law of the Court of Justice that unfavourable treatment of a woman related to pregnancy or maternity constitutes direct discrimination on grounds of sex. Such treatment should therefore be expressly covered by this Directive”     and

(25) For reasons of clarity, it is also appropriate to make express provision for the protection of the employment rights of woman on maternity leave and in particular their right to return to the same or an equivalent post, to suffer no detriment in their terms and conditions as a result of taking such leave and to benefit from any such improvement in working conditions to which they would have been entitled during their absence”.

The Labour Court decision in Teresa Cross (Shanahan) Croc’s Hair & Beauty and Helen Ahern EDA 195 was cited in support.

Section 6 (2A) of the Employment Equality Acts makes it clear that when a woman is treated less favourably than another employee due to her pregnancy, maternity or related matter, it constitutes discrimination on grounds of gender. It is submitted that the contractual entitlements of the Complainant were disregarded due to her pregnancy or maternity leave and this constitutes less favourable treatment within the meaning of the Act.

The Respondent is a local development company and a registered charity operating as a not for profit. The Company delivers a number of programmes each operating under a contract with the various funders and different terms and conditions as per the funders stipulations.

Payment of Wages Act 1991

Maternity pay is not a statutory entitlement but a contractual one. There is no contractual entitlement to maternity pay for the Complainant. Her contract states

“This contract is at all times subject to and should be read and interpreted in accordance with the rules governing the DSP CE Project and all other programmes being delivered by (the Respondent) at any point in time”.

The Complainants role was fully funded by the Department of Employment and Social Protection which does not provide funding payment for maternity leave. The relevant clause in the manual states:

“If a Sponsor elects to pay a participant while on maternity leave, it is on the clear understanding that DSP cannot provide grant support for such payments”.

Employment is therefore conditional of the rules of the associated funding provider – this is expressly stated in the contract of employment signed by the Complainant.   The effect of this is there is no money to pay maternity leave. If there was, the Respondent would happily do so.

Employment Equality Acts

The Complainant has alleged that the Respondent is in breach of the Employment Equality Acts 1998-2015 for not paying her maternity pay. The Respondent submits that the Complainant has failed to demonstrate how this constitutes a breach of the Employment Equality Acts. The Respondent submits that this does not constitute less favourable treatment on grounds of gender, it is for the Complainant to display the converse. The Complainant has failed to establish any facts upon which it could be presumed that this treatment was in any way connected to her gender therefore she has failed to demonstrate that a case of discrimination exists. She has therefore failed to infer facts upon which a prima facie case of discrimination can be made.   The onus of proof is on the Complainant to show that she was discriminated against on ground of her gender. No evidence to date has been produced to substantiate these allegations. The claim should be rejected.

“5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

( a ) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

( b ) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

( c ) in the case of a deduction, the employee has given his prior consent in writing to it.”

Section 5 (6) of the Act provides:

“(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

In this instant case, the Complainant relies on her assertion that she had a contractual right to paid maternity leave for the period in question.   She relies on the Company Handbook paragraph 4 which states :

“The Company recognises the importance of a healthy balance between work life and family life and will make provision for maternity/adoptive leave in accordance with the Maternity Protection Acts 1994. Paid maternity leave is only available to employees who have completed 3 years continuous service with the Company”.

This clause commits the Company to make provision for maternity/adoptive leave in accordance with the Maternity Protection Act 1994. However, that Act does not provide for payment of wages by the employer during the period of maternity leave. The question to be addressed is did the Complainant have the contractual right to paid maternity leave?     In addressing this question, I note the wording of the various contracts and covering letters provided to the Complainant. On 30th April 2014, the Complainant was furnished with a written contract and signed by the Complainant on 5th May 2014 which contained the following:

“This contract is at all times subject to and should be read and interpreted in accordance with the Rules governing the DSP CE Project and all other programmes being delivered by … at any point in time”.

The covering letter to the Complainant dated 30th April 2014 from the CEO states:

“A copy of the Employee handbook is also enclosed which should be read in conjunction with your contract. The contract will supersede the Employee Handbook where differences may arise due to the requirements of our various funders”.

On 4th April 2016 the Complainant was furnished with and signed a contract which stated:

“This contract is at all times subject to and should be read and interpreted in accordance with the Rules governing the DSP CE Project and all other programmes being delivered by … at any point in time”.

Discrimination, ground related to pregnancy or maternity leave.