Is it discriminatory not to top-up state paternity pay?
New figures released by the Department of Social Protection show that over 27,000 fathers (or "relevant parents") in Ireland have taken statutory paternity leave since the introduction of this benefit via the Paternity Leave and Benefit Act 2016 (the Act). However, the question as to whether employers who "top-up" the State maternity benefit are now required to similarly top-up the relatively new State paternity benefit has vexed employers since the Act came into effect late last year.
A recent decision of the Workplace Relations Commission (the WRC) casts some much needed light on this area – recognising the special protection afforded to those on maternity leave and, helpfully, confirming that a decision not to top-up paternity benefit is not necessarily discriminatory.
What are expectant fathers entitled to?
Expectant fathers (and "relevant parents" as defined in the Act) are entitled to two continuous weeks' paid leave within six months of the birth of their child. During this period they will receive the State paternity benefit of €235 per week (provided they have made sufficient PRSI contributions). While the amount of the State paternity benefit mirrors the State maternity benefit, the State maternity benefit is payable in respect of a much longer period (the first 26 weeks of maternity leave).
Are employers legally required to "top-up" the State paternity benefit?
In line with the Maternity Protection Acts 1994-2004, the Act does not require employers to "top-up" the State paternity benefit. However, the introduction of statutory paternity leave as a concept last year raised the question of whether an employer who tops up maternity benefit is obliged to now top-up paternity benefit – or run the risk of a claim for gender discrimination.
To date, the more prudent approach recommended to employers who top-up maternity benefit has been to match this policy and equally top-up the new paternity benefit. However, a recent decision of the WRC (An Area Manager v A Transport Company ADJ-0000577) suggests that this may not be necessary.
What was the case about?
In this case a male senior manager brought a claim under the Employment Equality Acts 1998-2015 asserting that his employer's decision not to top-up the paternity benefit constituted gender discrimination. While the Transport Company topped-up maternity benefit for all females (including those females with a Class D PRSI contribution status), it offered no top-up in respect of the paternity benefit for any expectant fathers – including fathers with a Class D PRSI contribution status.
As the claimant did not have the requisite PRSI contributions, he did not qualify for State paternity benefit on the birth of his first child in January 2017 and, as per his employer's policy, he would receive no separate top-up during the two weeks statutory paternity leave. In such circumstances the claimant lodged a claim with the WRC asserting that he was treated less favourably as a new male parent compared to a new female parent.
What did the WRC decide?
The WRC considered whether the Transport Company's decision to top-up maternity benefit in respect of a female D1 contributor but not to top-up paternity benefit in the case of the claimant (a male D1 contributor) constituted gender discrimination.
The Adjudication Officer relied on section 26(1) of the Employment Equality Act 1998 (which implemented the relevant European Union directive) and provides: "Nothing in this Act shall make it unlawful for an employer to arrange for or provide treatment which confers benefits on women in connection with pregnant and maternity (including breast feeding) or adoption)". On this basis the Adjudication Officer found that "the special protection afforded women in connection with pregnancy and maternity is embedded in both European and Irish Law" such that employers are "entitled to make special provision for women at the time of Maternity Leave". Accordingly, the Adjudication Officer found that the attempted "equation of Paternity Leave with Maternity Leave" by the claimant is "misplaced" and the claimant had ultimately failed to establish a prima facie case of discrimination on grounds of gender.
What does this mean for employers?
This recent WRC decision is a useful compass for employers in navigating their obligations when it comes to employees' paternity leave entitlements. It now seems clear that employers have the green light to gold-plate their approach to topping up maternity leave without a need to match any such top-ups in the case of their expectant fathers.
However, in circumstances where the societal trend at an EU level and further afield is pushing towards more flexible and family friendly working practices and employee leave arrangements more generally, this will continue to be an active space for employers to keep under review. At a minimum, employers are advised to have in place a clear and comprehensive paternity leave policy that is easily accessible by employees.
For more information, please contact Ailbhe Dennehy or your usual contact on the A&L Goodbody Employment Team.
Date Published: 27 November 2017