Worker

Employer

Anonymised Parties

Administrative Assistant

Foreign Embassy

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00000694

21/09/2022

The employee is employed as an Administrative Assistant at the embassy in Dublin.  She commenced employment on 19 November 2018.  This dispute concerns her claim for payment during maternity leave.  The employee asserts that it was the established practice of the employer to top up employee’s salaries while on maternity and paternity leave.  The employee was on maternity leave from 05 September 2022 to 04 March 2023.  The employee’s dispute is that she has not been treated equally and fairly compared to other employees.

The employee used internal procedures to try to reach a resolution of the dispute directly with her employer.  The employee’s union representative also tried to have the dispute resolved directly with the employer.  When these attempts to resolve the dispute failed the employee referred the dispute to the Workplace Relations Commission on 21 September 2022. 

The employer did not attend the hearing and did not make any submission concerning the dispute.

The employee commenced employment on 19 November 2018.  She is employed as an Administrative Assistant, working 40 hours per week at an annual salary of €35,871 gross. 

The employee was on maternity leave from 05 September 2022 to 04 March 2023.  The employee asserts that it was the established practice of the employer to pay employees their full salary, less the Social Protection maternity or paternity benefit, while on leave.

The employee asserts that a former female colleague was paid her full salary while on maternity leave in 2017.  A current male colleague was paid his full salary for two periods of paternity leave.

The employee wrote to the employer on 10 June 2022 requesting that they seek sanction to pay her the normal salary, less the maternity benefit from the Department of Social Protection.  The employer responded on 16 June 2022 stating it was not legally obliged to pay her salary while on maternity leave and there was no contractual entitlement to such payment. 

The employee again wrote to the employer on 21 June 2022 requesting to be paid her full salary, less maternity benefit, while on maternity leave in line with the established practice and referenced colleagues who had been paid their salary while on maternity or paternity leave.

As the matter in dispute was not resolved directly between the employee and her employer, she requested her union to write on her behalf.  Her union representative wrote to the employer on 27 June 2022.  The union referred to the past practice of paying full salary (less Maternity benefit) to employees on maternity leave.  The union acknowledged that the employee’s contract of employment was silent on the matter of paid maternity leave but noted it was considered good practice on the part of an employer to have such a benefit in place.  Given the precedent established with another employee, the union requested payment of the employee’s full salary less maternity benefit during her statutory maternity leave period.

The employer replied by letter dated 06 July 2022, stating that payment of full salary while on maternity leave is not established by the employment contract or by Irish law.  The practice of their embassies everywhere in the world is that benefits offered to employees must be required by the employment agreement or by local law.

The employee provided a written statement from a former colleague confirming that she was paid her full salary by the employer, less the State maternity benefit, for six months when on maternity leave.  The former colleague was named and a colleague who was paid in full for two periods of paternity leave was also named on the complaint form.

The employee acknowledged that her contract of employment does not contain a clause dealing with maternity or paternity leave.  However, the employee asserts that the previous action of the employer in paying full salary during maternity and paternity leave is evidence of an implied or unwritten condition of employment.

The employee is seeking to be treated in the same manner as her colleagues.  The employer has an established practice of paying full salary, less the State maternity or paternity benefit, to employees while on leave.  The employee seeks a recommendation to the employer to pay to her a net amount of €11,218.56 net.  The employee’s salary was €2,869.76 per month.  The State maternity benefit was €1,000 per month.  The employee was on maternity leave for six months.  She claims €1,869.76 x 6, total €11,218.56.

There was no appearance by or on behalf of the employer at the hearing.  The employer did not make a submission.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The employee referred a dispute concerning her treatment by the employer during a period of maternity leave.  The employee provided a copy of her employment contract.  She acknowledged that her contract does not contain a clause about payment during maternity leave.  However, the employee claims she wishes to be treated equally and fairly as other employees, past and present, have been treated.  The employee alleges that other employees have been paid their full salary during periods of maternity and paternity leave.

There is no entitlement under Irish legislation to paid maternity or paternity leave.  There is an entitlement to leave and the employee did receive her maternity leave from her employment. 

This dispute is not about an entitlement to payment, either under legislation or contract.  It is a dispute about fair and equal treatment between employees of the same employer.

Having carefully considered the employee’s submission I am satisfied that the employer has previously paid full salary, less the State benefit, during a period of maternity leave.  It appears that the policy of the employer has now changed and it is unwilling to pay any benefit during a period of maternity leave unless required to do so by legislation.  In my opinion the fact that an employee was in the past paid during her maternity leave is not evidence of an established custom and practice, it is evidence of how one employee was treated over five years ago when on maternity leave.

I am also satisfied that the employer has paid full salary, less the State benefit, to a current male colleague during a period of paternity leave.  The employer is not required by law to pay an employee during a period of paternity leave.  However, the employer has chosen to make the payment for period of paternity leave.  It seems that the employer has chosen to treat male and female employees differently, regarding payment, when they take periods of maternity or paternity leave.

In my opinion the employer has acted unfairly in choosing to pay male employees during paternity leave and not to pay female employees during maternity leave.  There is however a considerable difference in the period of paternity leave and the period of maternity leave.  Paternity leave is provided for two weeks whereas maternity leave is provided for twenty-six weeks.  It is fair and good practice to treat male and female employees equally, especially in the context of family related leave and payment for such leave.

In my opinion the employee has suffered unfair treatment in comparison to her male colleague who was paid his full salary during two periods of paternity leave.  The employee in this dispute was not paid at all during her maternity leave.  I recommend the employer pays to the employee €3,000 in compensation for her unfair and unequal treatment when compared to the treatment of her male colleague when he was on paternity leave.

Dispute

Payment during maternity leave

Payment during paternity leave