Is it discrimination to top up maternity pay but not paternity pay?
September 2016 saw the introduction of Paternity Leave, that for the first time ever allowed fathers/partners to take two weeks paid leave on the birth of a child/placement of a child for adoption. Paternity Leave is paid at the same rate as Maternity Pay, currently €235 per week*, leaving it up to employers to decide whether or not they wish to top-up pay during the two weeks leave. The question then arose that if by topping up maternity leave, would an employer by default have to top up paternity pay?
A recent Workplace Relations Commission (WRC) case involving a transport company, provides useful guidance on the answer to this question.
In this case, a male employee brought a case under the Employment Equality Act claiming discrimination on the grounds of gender due to the fact that the employer topped up maternity pay but did not top up paternity pay.
However, the WRC Adjudicator held in favour of the Company, stating that maternity leave is different to paternity leave and that “the special protection afforded to women in connection with pregnancy and maternity is embedded in European and Irish law”. The Adjudicator concluded that the employer was entitled to make special provisions for women at the time of maternity leave and was protected in that regard by the Employment Equality Acts.
Conclusion
This case gives the green light to employers who wish to offer a maternity top up but not offer the same for paternity leave. Whatever it is you decide on, employers are advised to have clear paternity and maternity leave policies in place that is accessible to all employees.
*The rate of maternity/paternity pay will increase to €240 per week from the end of March 2018.
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