Complainant

Respondent

Parties

Ruth  Naughton

Health Service Executive

Complainant

Respondent

Anonymised Parties

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Representatives

Internal HR

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00055299-001

27/02/2023

The Complainant commenced her employment with the Respondent on 3 June 2021 and works on a part time basis, namely for 1 day per week.

She stated that during her period of maternity leave the Respondent deducted her full maternity benefit from her pay. She asserted that this is unfair and that it should have been deducted on a pro rata basis.

The Complainant commenced her employment with the Respondent on 3 June 2021 working each Thursday in the Infectious Disease Department on a part time basis, namely for 1 day per week (20% of FTE).

She commenced her maternity leave on 24 January 2022 and availed of 31 weeks maternity leave until 27 August 2022. During her period of leave, the Respondent deducted €250 weekly, namely the full amount of the maternity benefit weekly payment, even though she was only employed by the Respondent for one day per week. She asserted that this was unfair given that all other entitlements such as holidays/bank holidays were paid on a pro rata basis in line with the Protection of Employees (Part-Time Work) act 2001. 

The Complainant further stated that the Respondent is benefiting financially from the deduction of her entire maternity benefit when compared with a full-time employee. Specifically, she stated that, although she suffered a significant loss of earnings, the Respondent benefited in the amount of €6,000 by deducting her entire maternity benefit instead of applying a proportional deduction based on the number of hours that she worked.

She also stated that she was aware of a colleague working for the Respondent in Letterkenny Hospital in a similar role who availed of maternity leave while working 1/10 of her week but who only had 1/10 of her maternity benefit payment deducted from her pay based on her contracted hours.

The Respondent stated that the Complainant was paid maternity pay during her period of maternity leave, in accordance with the Department of Health’s guidelines. The Respondent further stated that they operate a system of direct deduction by payroll of any maternity benefit due to an employee from their maternity payment.

If an employee who is in receipt of maternity pay from the Respondent discloses that they have a second employer who operates a maternity pay scheme and who also deducts maternity benefit, the Respondent deals with this on a case-by-case basis.  In the Complainant’s case however, her other employer did not operate a maternity pay scheme and no deduction was made in respect of maternity benefit.  As no such deduction was being made by her other employer, the Respondent deducted the full amount of maternity benefit from her maternity pay in the normal manner.

The Applicable Law

Sections 7(2) and 7(3) of the Protection of Employees (Part-Time Work) Act, 2001 states as follows:

7(2) For the purposes of this Part, an employee is a comparable employee in relation to the employee firstly mentioned in the definition of “part-time employee” in this section (the “relevant part-time employee”) if—

(a) the employee and the relevant part-time employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

( b) in case paragraph (a) does not apply (including a case where the relevant part-time employee is the sole employee of the employer), the employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant part-time employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable employee in relation to the relevant part-time employee, or

(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant part-time employee is employed in and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

and references in this Part to a comparable full-time employee in relation to a part-time employee shall be construed accordingly.

(3) The following are the conditions mentioned in subsection (2)—

(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,

(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and

(c) the work performed by the relevant part-time employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions. 

Section 9 (1) and 9(2) of the Protection of Employees (Part-Time Work) Act, 2001 states as follows:

9(1) Subject to subsection (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.

(2) Without prejudice to section 11(2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

Analysis

The Complainant is contending that while an employee is on maternity leave, the Respondent should determine the amount of maternity benefit to be deducted from an employee’s pay based on the number of hours an employee works for the Respondent. This is at odds with their current method of deducting the full benefit from an employee’s pay where an employee is not in receipt of any payment from another employer.  In making this proposal, the Complainant is effectively seeking the introduction of a new formula for the deduction of maternity benefit. This proposed new method would be more financially beneficial to her because of the failure of her other employer to pay her during her maternity leave.

As the failure of the Complainant’s other employer to pay her during her maternity leave has nothing to do with the Respondent however, and there was no direct evidence presented to suggest that the Respondent deducted anything less than the full maternity benefit from any full-time employee or any other employee whose other employer did not pay them during her period of maternity leave, I find that she was not treated in a less favourable manner than one of the Respondent’s other employees.

I find that the complaint is not well founded for the reasons set out above