The Paternity Leave and Benefits Act 2016 provided new fathers (and other “relevant parents”) with the option to avail of two weeks paternity leave within 26 weeks of the birth of their child. Since the introduction of this legislation, it has been questioned whether an employer would be obliged to “top up” paternity leave if they already had a practice in place of providing a maternity leave “top up” for fear of falling foul of the Employment Equality legislation. This issue was raised in the recent case below.

Area manager v a transport company 

The complainant, an area manager with a public sector transport company, became a first time parent in January 2017.  A number of months earlier on 20 September 2016, a company memo had advised employees of the newly introduced legal entitlement to statutory paternity leave and that as a result, the existing company's discretionary paternity leave scheme (which had provided for 3 days leave) was being terminated. The memo, issued by the HR Department, stated that employees availing of the newly introduced paternity leave would receive payment from the Department of Social Protection (DSP). However, the claimant in this case did not have sufficient PRSI contributions and as such was not entitled to payment from the DSP. He argued that as female employees were entitled to paid maternity leave, topped up by the employer, he was treated less favourably as a new male parent compared to a new female parent. He maintained this amounted to gender discrimination and took a claim on that basis to the Workplace Relations Commission.

On hearing the case, the Adjudicator Officer (AO) described the area manager’s equation of paternity leave with maternity leave as “misplaced”. Noting the special protection afforded to women in connection with pregnancy and maternity that is embedded in both European and Irish law, he said an employer is “entitled to make special provision for women at the time of maternity leave and is protected in that regard by the [equality] legislation under which the complainant was brought.” 

The AO did observe that the manner in which the public transport company initially withdrew its 3-day leave provision without notice was an industrial relations matter which could have been handled better by the company.

Based on his finding that the employer is entitled to make special provision for women in connection with pregnancy and that maternity leave is different to paternity leave, the AO found that the complainant had failed to establish a prima facie case of discrimination on the grounds of gender with regard to conditions of employment. The complaint therefore failed. 

Paternity leave will be one of the topics covered at the SFA Employment Law Conference in Dublin on 9 October. For further information you can also consult the SFA guideline or contact Ciara McGuone, SFA Executive, on 01 605 1668 or ciara.mcguone@sfa.ie.