Complainant

Respondent

Parties

Sowmya  Paul

Health Service Executive

Complainant

Respondent

Anonymised Parties

Representatives

  Self-Represented

Mr. J.J. Tevlin, Health Service Executive

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00045775-001

23/08/2021

The Complainant commenced employment with the Respondent on 5th January 2009. At all times her role was described as “staff nurse”. The Complainant is a permanent, full-time member of staff in receipt of a set salary.

On 23rd August 2021, the Complainant referred the present complaint to the Commission. Herein, she alleged that the Respondent had unfairly removed a parental leave allowance from her. By response, the Respondent submitted that the removal was the allowance was not unfair and that the complaint is not actionable in the present forum in any event.

A hearing in relation to this matter was convened for and finalised on 22nd April 2022. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

The Complainant works as a staff nurse for the Respondent. Approximately seven years ago, the Complainant reached an agreement with her employer to take six hours of parental leave on a fortnightly basis. For the last seven years the Complainant was required to re-apply for this leave every six months.

On 2nd March 2021, the Complainant was informed that her parental leave was reduced to a total of six hours monthly, effectively halving the allowance. When the Complainant queried the same, she was informed that parental leave for frontline staff was being reduced on foot of the Covid-19 pandemic. When the Complainant again queried the same, she was informed that she could reduce her scheduled hours if required for childcare, however the same would not be classified as parental leave for the purposes of the present Act.  

By submission, the Complainant stated that it was unfair that she was required to re-apply for parental leave every six months. She also questioned the rationale of the Respondent in suggesting that she reduce her hours, rather than avail of parental leave for the same amount of time. Finally, the Complainant submitted that the Respondent had failed to give sufficient notice of the variation of the parental leave.

By response, the Respondent broadly agreed with the factual matrix outlined by the Complainant. They submitted that in 2020, all parental leave was reviewed in an effort to maximise the availability of frontline staff. Unfortunately, on foot of the same, the Complainant’s parental leave was reduced from six hours on a fortnightly basis to six hours per month. On receiving the Complainant’s query in this regard, the Respondent sought outcomes that would best facilitate the Complainant’s childcare requirements, however they remained unable to restore the Complainant’s previous parental leave allowance.

The EU Parental Leave Directive was transposed and implemented into Irish law by the Parental Leave Act in 1998. Thereafter, the Act has been amended by the Parental Leave (Amendment) Act 2006 and further amended by the Parental Leave (Amendment) Act of 2019.

Section 6(1) of the Act, as amended, provides that,

“…an employee who is a relevant parent in respect of a child shall be entitled to leave from his or her employment, to be known and referred to in this Act as ‘parental leave’, for a period of 26 working weeks to enable him or her to take care of the child.”

Section 7(1)(a) of the Act provides that an employee has an automatic entitlement to avail of this leave in a single block, or two blocks of at least six weeks. Part B of the Section go on to provide that this leave may be taken in differing amounts, such as one day per week, with the agreement of the Employer.

Section 8(1) of the Act provides that,

“When an employee proposes to take parental leave, he or she shall, as soon as reasonably practicable but not later than 6 weeks before the commencement of the leave, give notice in writing of the proposal to his or her employer.”

Section 9(1) then provides as follows,

“Where an employee has given a notice under section 8(1) to his or her employer, they shall, not less than 4 weeks before the commencement of the parental leave concerned, prepare and sign a document (referred to in this Act as “a confirmation document”) specifying the date of commencement of the leave, its duration and the manner in which it will be taken.”

Finally, Section 10(2) provides that,

“…if, after the date of a confirmation document (whether or not the period of parental leave to which it relates has commenced) (a) the employer concerned or his or her successor and the employee concerned so agree, the leave or part of it may be postponed to such time as may be so agreed upon, the period of such leave may be curtailed in such manner and to such extent as may be so agreed upon or the form of the leave may be varied in such manner as may be so agreed upon, and in such a case the confirmation document shall be amended accordingly”.

In the present case, the Complainant applied for, and was granted Parental Leave of six hours per fortnight for approximately seven years prior to the referral of the complaint. Leave in this manner, falls under the remit of Section 7(1)B of the Act and necessarily included the express agreement of the Respondent. It is further apparent that such agreement was not to exist into perpetuity, with the same being subject to a six-monthly review. 

On 6th February 2021, the Complainant issued a request for parental leave in accordance with Section 8(1) above. On 11th March 2021, the Respondent replied stating that the Complainant’s request was, in part, denied and offered her the reduced amount of six hours parental leave per month. This offer was duly accepted under protest and commenced on 22nd March 2022. 

Having regard to the wording of Section 7(1)(b), I note that the division of the parental leave into a duration of less than six weeks must be arranged with the “agreement” of the Respondent. In the present case the Respondent has withdrawn the agreement in respect of the original arrangement and consequently Section 7(1)(b) does not apply to the same. Thereafter, I note that the Complainant completed a “confirmation document” as envisioned in Section 9(1). In this regard, the Complainant is correct in her submission that the Respondent is in breach of this provision of the Act by failing to provide the in excess of four weeks prior to the commencement of the leave. Nonetheless, such a failure does not serve to negate the leave in circumstances whereby the Complainant agreed to the same, albeit under protest. In this regard the leave that commenced on foot of this confirmation document is classified as a new leave and consequently the provisions provided for in Section 10(2) do not apply to the same.

Having regard to the foregoing, I find that the Respondent is in breach of Section 9(1) of the Act. While the Respondent’s withdrawal of the original agreement and the imposition of the subsequent one may well have consequences in respect of industrial relations or other employment statutes, I find that the reasonableness or otherwise of their actions in this regard is not actionable under the present legislation.

Having regard to the foregoing, I find that the complaint is in part well-founded.

Section 21(1) of the Act provides that,

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a dispute between an employee and his or her employer relating to the entitlements of the employee under this Act (or any matter arising out of or related to those entitlements or otherwise arising under this Act)…may contain such directions to the parties concerned as the adjudication officer…considers necessary or expedient for the resolution of the dispute or matter and such other redress as the adjudication officer…as the case may be, considers appropriate having regard to all of the circumstances and the provisions of this Act, and accordingly may specify—

(a) the grant to the employee of parental leave of such length to be taken at such time or times and in such manner as may be so specified,

(b) an award of compensation in favour of the employee concerned to be paid by the employer concerned, or

(c) both a grant referred to in paragraph (a) and an award referred to in paragraph (b).”

In circumstances whereby the Respondent is in breach of Section 9(1) of the Act, I find that the complaint is well-founded. Regarding redress, I note the Complainant’s evidence that the Respondent’s failure to provide a confirmation document within the specified time frame created a degree of uncertainty regarding her childcare arrangements during an already stressful period. Having regard to the foregoing, I award the Complainant the sum of €3,485.44, or the equivalent of three weeks’ remuneration, in compensation.

Parental Leave, Single Day, Confirmation Agreement