2015 - Page 3 of 12 - The HR Company

Employers must maintain terms & conditions of Employees on Maternity Leave

Equality Tribunal awards €80k to employee subjected to discriminatory treatment. The former employee (the complainant) in this case commenced employment with her employer (the respondent) in 2003 – She was appointed Financial Controller in 2007 and her employment ended in February 2011. She referred a complaint under the Employment Equality Acts, 1998-2008 to the Equality Tribunal on 12 July, 2011.

The respondent, who had gone into liquidation by the time the Hearing took place in December, 2013 did not attend the Hearing. The liquidator, who received adequate notice of the Hearing, chose not to attend either. The Hearing proceeded in their absence and the complainant built a case against her former employer in front of Equality Officer, Vivian Jackson.

According to the complainant’s uncontested evidence, she informed her employer that she was expecting her third child in November 2009. She alleged that her employer’s attitude towards, and treatment of, her worsened from this point. She had had a miscarriage in the summer of 2009 and, according to the complainant (Ms. M), her employer (Mr. W) responded to her November pregnancy news with the comment “Jesus Lisa, you don’t hang around”. The complainant gave evidence that a few weeks after this comment her employer again referenced her pregnancy but this time it was in front of clients and his comment shocked her. The complainant gave evidence that Mr. W implied to the clients that he was not happy that she was pregnant and stated that ‘she was meant to stop after two’. Maternity Leave

The complainant described an incident in January 2010 where she was involved in a car accident. She claimed that a doctor certified her as unfit for work for a week in order to ensure that she and her unborn baby were unharmed. Even though she did not have access to a vehicle for the period, the respondent told her that she was required to attend work the following Monday. Ms. M complied with her employer’s request because she was fearful of losing her job. In February 2010, Ms. M requested a meeting in order to discuss cover during her maternity leave - this was due to begin at the end of April 2010. Mr. W agreed to hire an employee during the period that Ms. M was due to be on her protected leave. The complainant was under the impression that the new hire would begin work on a fixed term contract, however, during the course of the interview the successful applicant, Ms. S, asked about the duration of the contract and, to the complainant’s surprise, Mr. W said that he was ‘not sure that Lisa will be coming back to work’. The complainant said that she had never implied that she would not return to work and, in fact, not returning was ‘undesirable from a personal and professional point of view and impossible from a financial perspective’. The complainant gave evidence that the respondent ‘froze her out’ – he undermined her with clients and changed arrangements regularly. He also began removing tasks from the complainant. Ms. M believes that this occurred because her employer no longer felt that, with three children, she would be committed to the company. The complainant demonstrated times where she had shown considerable commitment to the company in the past and said that the employer had no reason to believe that her commitment would diminish. The complainant sought a meeting with Mr. W prior to her leaving for her maternity leave – she wanted to discuss her remuneration and benefits during the leave. In the past, the employee had been allowed to keep her company phone and car during the leave and the employer also topped up her state maternity benefit so she continued to receive her normal monthly net income throughout her maternity leave. This time it was different – Mr. W only offered the complainant a top-up payment of €150 per month – far less than what was offered during previous leave periods. Ms. M accepted this. To her surprise, Ms. M was obliged to return her company car and phone for the duration of her leave on this occasion. Ms. M was due to complete her maternity leave at the end of January 2011 and in December 2010 she contacted her employer to give notice of her intention to return to work. She did not receive a response to this e-mail and so she e-mailed Ms. S, who had been hired to cover the period of maternity leave. Ms. S confirmed that Mr. W had received the complainant’s e-mail. Ms. S sent another e-mail on 6^th January 2011 requesting that Ms. M attend a meeting with Mr. W on 14^th January. At this meeting, Ms M was notified that her role of Financial Controller no longer existed in its previous format within the new company structure. Ms M was informed that the role was redundant and that another position was available to her as an alternative. The new position was a more junior role that not only incorporated additional hours but also a 40% reduction in pay. Ms M was not satisfied with this – she found it to be an unacceptable alternative to the Financial Controller role and demonstrated that her original role was not in fact redundant as MS. S continued to perform Ms. M’s original duties and was listed as the company’s Financial Controller on the company website. The complainant researched her position in light of the new role that her employer offered her as an alternative and realised that she was not obliged to accept the offer. The respondent offered Ms. M her original terms and conditions (including rate of pay and hours), however, the role that she was being asked to perform going forward was a clear demotion and a serious reduction in responsibility. She requested to return to her role as Financial Controller. Again it was expressed by the respondent that this role was redundant and he offered her 14 days to decide whether or not to take the new role of ‘Credit Control Manager’. Ms. M said that she was only happy to return to her original role and stated why the new offer was unacceptable in light of the fact that her original role clearly still existed. Mr. W wrote to Ms. M a number of days later rejecting her arguments and adding that, as she had not reported for duty, he considered her to have resigned. Dismissed

Vivian Jackson, Equality Officer, found that Ms. M had been subjected to a range of unlawful treatments. Her employer made it impossible for her to proceed wither pre maternity leave role and essentially dismissed her. The Equality Officer ordered that the respondent pay the complainant €80,000.00 in compensation for the discrimination inflicted on her.

By The HR Company Administrator|2017-01-02T10:59:55+00:00June 17th, 2015|Discrimination|0 Comments

The Applicable Minimum Notice Periods for Employees in Ireland

The Minimum Notice Acts 1973 to 2005 ensure that every employee who has been in the continuous employment of his or her employer for at least 13 weeks is entitled to a minimum notice period before you, as the employer, may dismiss that employee.   The statutory period varies depending on the length of service (outlined below). It is essential to note that if you do not require the employee to work out their notice you, as the employer, are obliged to pay the employee for the applicable period.

If the employment lasted between 13 weeks and 2 years the Acts provide that you should pay the employee one week's notice before termination of employment
If the length of service is between 2 and 5 years then the notice period must be 2 weeks
For 5 to 10 years then the appropriate notice is 4 weeks
From 10 to 15 years then 6 weeks’ notice must be given
For more than 15 years the employee is entitled to a notice period of 8 weeks.

You can agree payment in lieu of notice with the employee if this is a more suitable arrangement for both parties involved. If it is the employee that has made the decision to terminate the employment contract and he or she has carried out 13 weeks of continuous employment with the company then he or she is obliged to serve you, as the employer, with notice 1 week prior to the departure date (unless the contract of employment provides for a longer notice period). It is important to bear in mind that the Acts do not apply to:

Members of the Permanent Defence Forces (except temporary staff in the Army Nursing Service
Members of An Garda Síochán
Seamen signing on under the Merchant Shipping Ac
The immediate family of the employer (provided they live with the employer and work in the same private house or farm
Established civil servants

Employees are said to have continuous service if they have not been dismissed or have not voluntarily left their job during the period in question. This continuity is not normally affected by things like lay-offs or by a dismissal followed by immediate re-employment. Nor is it affected by the transfer or trade of a business from one person to another. However, it is important to distinguish between categories of employees for the purposes of these Acts as an employee who has claimed for and received a redundancy payment as a result of lay-off, for instance, is considered to have left his or her employment on a voluntary basis. If an employee was absent from work because he or she was taking part in a strike relating to the business in which the employee is employed this period is not included in their “continuous service” record. Minimum Notice Periods

  It is very important to note that the Acts do not affect your right or that of the employee to terminate a contract of employment without notice due to the gross misconduct of the other party. A Workplace Relations Customer Services department has been set up at the offices of the Department of Jobs, Enterprise and Innovation. This resulted from the amalgamation of the information services previously provided by the National Employment Rights Authority’s Contact Centre and the general enquiries areas of the Equality Tribunal, the Rights Commissioner Service and the Employment Appeals Tribunal. This section has responsibility for:

information provision in relation to employment, equality and Industrial Relations rights and obligations
the receipt and registration of all complaints referred to the five Workplace Relations Bodies, and
dealing with enquiries concerning all complaints.

From 3rd January 2012 all complaints to the Workplace Relations Bodies have been channelled through Workplace Relations Customer Services, where they are registered, acknowledged and referred to the relevant adjudication body.

By The HR Company Administrator|2017-01-02T10:59:54+00:00June 17th, 2015|Notice|0 Comments

When should you use a Non Disclosure Agreement (NDA)?

A non-disclosure agreement (NDA), often referred to as a confidentiality or a secrecy agreement, is a legal contract between two or more parties outlining knowledge and/or information that the parties wish to share with one another but wish not to have accessed by third parties.

By signing the document the parties agree not to disclose information that it contains. An NDA creates a confidential relationship between the parties to protect any type of sensitive material such as details of trade secrets – it prevents the dissemination of company or project-specific information that, if leaked, could be damaging for one or both of the parties involved. It usually prevents the signing party from benefiting commercially from the information.

NDAs are commonly signed when two companies are considering doing business with each other and need to exchange information to benefit the partnership. A mutual NDA restricts both parties in their use of the materials provided; alternatively, an NDA can also exclusively restrict the use of material by one of the individuals or groups involved.

Employers often request that an employee signs an NDA or a similar form of contract when he or she commences employment, or a new assignment, in order to maintain confidentiality.

NDA

An NDA incorporates various basics – the details of the parties who must adhere to the agreement and the information to be kept confidential (often including items such as unpublished patent applications, financial information, customer lists, discoveries and business strategies). When drafting an NDA it is important to include the disclosure period in the contract.

Those writing the NDA should note that if the recipient had prior knowledge, obtained legally, of the matters contained within the NDA - or if the contents are publically available - the signatory cannot be held liable for dispersing the material. Similarly, if the materials are subject to a subpoena or a court order, this would override the contract.

The NDA should have a clause that forces the signing party to return or destroy the confidential information where the project or assignment is abandoned or when they no longer need access to the information.

Breach of the NDA is a serious offense – when this occurs the information owner can apply to court to have an injunction put in place to stop future breaches – Often it is too late at this stage as the damage has already been done. A second option here is to sue the party at fault for damages suffered by the breach. The consequences of breaching the NDA should be set out in the NDA and should include loss of profit as well as loss of reputation and costs and expenses caused by the breach. It is important to remember that Court proceedings can be a long and arduous process.

It can be extremely difficult to prove that an NDA has been breached but if a breach is proven, this can provide the basis for a claim. Given that it is not always possible to prove that an NDA has been breached some people do not rate them – however, at the very least the NDA holds some value in that it clearly sets out in writing what is expected of the parties to avoid any ambiguity and NDAs also serve as a reminder of the confidential nature of the information and act as a deterrent.

By The HR Company Administrator|2021-02-23T17:52:41+00:00June 17th, 2015|Documentation, Policies & Procedures|0 Comments

Labour Court rules – ‘Working in the Rain’ allowance to stay

A group of 27 low income cleaners who work for the South Dublin County Council were delighted yesterday, Thursday 20^th March 2014, when they were successful in their fight to keep their ‘Working In The Rain’ allowance which works out at approximately €50 per week per employee. The Labour Court ruling was in response to attempts by South Dublin County Council to abolish the allowance. Brendan O’Brien of SIPTU described the ruling as a ‘significant victory’ as the outcome has been hanging over the workers involved for an extended period of time. The workers, who perform street and park cleaning duties for the Council, are paid between €400 and €500 on average per week so the ‘Working In The Rain’ allowance amounts to approximately 10% of their income each week. The cost of the ‘Working In The Rain’ allowance to the Council is approximately €75,000 per year and the Council claimed that this payment is outdated because all of the employees now have the benefit of protective clothing to ensure they can carry out their duties safely - irrespective of the external weather conditions. The Council claimed that the group of 27 workers affected by this ruling are currently part of a larger group of approximately 140 workers who are all required to work in rainy weather conditions (unless it is unsafe to do so). SIPTU argued that the payment is pensionable and, consequently, to cease paying the allowance would breach the terms of the Haddington Road Agreement. Pension Obligations The dispute, which could not be resolved at local level, was the subject of a Conciliation Conference under the auspices of the Labour Relations Commission and, when no agreement was reached there the dispute between the workers and the Council was referred to the Labour Court in accordance with 26(1) of the Industrial Relations Act, 1990. The Labour Court ruled that the Claimants (the workers) are entitled to retain the allowance on a personal to holder basis.

By The HR Company Administrator|2017-01-02T10:59:56+00:00June 17th, 2015|Labour Court|0 Comments

Pay Slips – Wage Deductions and Associated Employer Responsibilities

The Payment of Wages Act, 1991 forces employers to provide a pay slip in respect of all employees. A pay slip is a statement in writing that outlines the total pay before tax (gross pay) and all details of any deductions from pay. The employer’s responsibility regarding the required provision of pay slips is set down in Section 4 of the Act.

The Act protects against unlawful deductions from employee wages. Here are the important points for employers to remember: -Deductions from employee wages must be authorised by either the employee’s contract of employment or by written consent of the employee – a trade union subscription, for instance. -An exception to this is where the employer makes a deduction from pay when there is a need to recover an overpayment of wages or expenses. -There is an obligation on the employer to make a deduction from an employee’s wages if they are required by a court order to do so - an example of this might be an Attachment of Earnings order in a family law case, for instance. -The employer is entitled to make a deduction if the employee is due to make a payment to the employer –An example of this would be if expenses arose due to the employee being on strike. Employer Responsibilities, Payslips

  On the other hand an improper deduction made by the employer is one which is not authorised. -(Income tax, universal social charge and PRSI contributions are a separate category as they are compulsory deductions required by law). -Where the deduction from wages arises because of either an act or omission of the employee - till shortages or breakages, for instance, or the supply of goods to the employee by the employer (cleaning of uniforms, perhaps) - then the amount of the deduction must be fair and reasonable. -The amount of the deduction must not exceed the loss experienced or cost of the service. -The deduction must take place within 6 months of the loss/cost occurring. Payslips

Failure to pay all or part of the wages due to an employee is considered an unlawful deduction and a complaint can be made under the Payment of Wages Act. Similarly, unpaid notice, holiday pay, bonus and commission payments can also form part of a claim under the Act.

By The HR Company Administrator|2021-02-23T17:53:12+00:00June 17th, 2015|HR Guide, Policies & Procedures|0 Comments

Under 18 Work Register – Employer Responsibilities

In accordance with the Protection of Young Persons (Employment) Act, 1996 employers are required to keep a register of employees that are under the age of 18. The basis for this is to guarantee the protection of young people and to ensure the workload assumed is not jeopardising their education. During a National Employment Rights Authority (NERA) assessment the inspector will request access to the company’s register of employees under the age of 18 (if the company employs workers in this category). There are strict rules that employers must adhere to when employing those under the age of 18. According to the Act employers cannot employ children under the age of 16 in regular full-time jobs. Children aged 14 and 15 may be employed on a controlled basis.

Some rules to pay attention to:

They can do light work during the school holidays – 21 days off must be given during this period.

They can be employed as part of an approved work experience or educational programme where the work is not harmful to their health, safety or development.

They can be employed in film, cultural/advertising work or sport under licences issued by the Minister for Jobs, Enterprise and Innovation.

Children aged 15 may do a maximum of 8 hours of light work per week during the school term. The maximum working week for children outside of the school term is 35 hours (or up to 40 hours if they are on approved work experience).

The maximum working week for children aged 16 and 17 is 40 hours with a maximum of 8 hours per day.

There are many obligations on the employer when he or she employs a young person – here is a list of some of the items that employers must be vigilant of: An employer must be provided with a copy of the young person’s birth certificate (or other documentation proving age) prior to the commencement of employment. Before employing a child an employer must obtain the written permission of the parent or guardian of the child. An employer must maintain a register of employees under 18 containing the following information:

The full name of the young person or child

The date of birth of the young person or child

The time the young person or child commences work each day

The time the young person or child finishes work each day

The rate of wages or salary paid to the young person or child for his or her normal working hours each day, week, month or year, as the case may be, and

The total amount paid to each young person or child by way of wages or salary

An employer and parent/guardian who fails to comply with the provisions of the Act shall be guilty of an offence. Some other notable rules the employer must adhere to when employing a young person or child are as follows: Employer Responsibilities

The employer is obliged to ensure that the young person receives a minimum rest period of 12 consecutive hours in each period of 24 hours.

The employer is obliged to ensure that the young person receives a minimum rest period of 2 days which shall, where possible, be consecutive, in any 7 day period.

The employer cannot require or permit the young person to do work for any period without a break of at least 30 consecutive minutes.

For a comprehensive guide to employer responsibilities and the rules and regulations governing the employment of young workers please refer to the Protection of Young Persons (Employment) Act, 1996

By The HR Company Administrator|2017-01-02T10:59:58+00:00June 17th, 2015|Employer Responsibilities|0 Comments

The HR Company provides Mediation to Resolve Workplace Disputes

The HR Company provides Mediation as an Alternative Dispute Resolution practice. Workplace mediation involves a third, neutral party bringing two disputing individuals (or groups) together in order to reach an agreement that satisfies both sides.This type of dispute resolution is gaining credibility as an alternative to court/formal proceedings and The HR Company employs experienced mediators who help your workplace to return to a healthy environment. As many of us know, clashes in the workplace can be extremely disruptive – not just to those directly involved but to bystanders also. Conflicts can arise for multiple reasons – for example, they can be as a result of a dispute over performance or something as simple as a personality clash. Conflict can severely impede an organisation’s ability to run efficiently and can damage employee well-being. It can cause stress, anxiety and depression. Conflict can increase employee turnover and can negatively influence reputation in the industry as well as delaying the Company’s achievement of its corporate goals. Another negative consequence of a dispute in the workplace is a decrease in productivity levels. Similarly, morale within the Company can be influenced in a negative manner as a result of work-related disputes and levels of employee absence can also increase. It is clear that workplace disputes can have extensive side effects. In an effort to resolve matters, parties are regularly forced to attend Employment Appeals Tribunal/Labour Court proceedings. However, this is not always the best course of action as, in our experience; these processes can often lead to a complete breakdown in relationships and can prove to be extremely lengthy and costly. In fact, these methods can often aggravate matters as, typically, only one party is satisfied with the conclusion and resources, including time and finances, have often been significantly drained throughout the process. In some instances, mediation can be an acceptable alternative to court proceedings when disputes arise in the workplace. Mediation is a confidential process where our experienced mediators encourage both parties to discuss all elements of the dispute without fear that their legal position could be compromised or prejudiced. Mediation can encourage a more swift resolution of differences and aims to find a solution that satisfies all parties while avoiding the types of adversarial procedures that have become very common in this era of increased employee litigation. Efficient working relationships can often be restored through the practice of mediation. Mediation is an informal approach to dispute resolution. It can be used in an attempt to resolve a vast range of differences. In our experience, mediation is most effective when introduced at the initial phase of disagreements, however, it can also be availed of later in the process – after Tribunal proceedings have concluded, for instance. At this stage mediation could assist in repairing the relationship between the parties that have been in conflict. When we are engaged by a Company to perform mediation, an unbiased facilitator assists the two parties to a dispute in reaching an agreement by listening to and understanding both sides to the story. The purpose of a skilled mediator is to encourage the parties to arrive at a mutually satisfactory solution. Our role as a neutral third party is not to judge or to determine who is at fault but, instead, to enable the meaningful exchange of information between parties with an ultimate goal of resolving the conflict. The HR Company mediator will not determine the outcome – this should come from the disputing parties. Mediation is morally binding but normally does not carry any legal status. There is usually one mediator or two co-mediators. One significant advantage of mediation is that it tends to be far less of a financial burden when compared to formal proceedings. Both parties to a dispute are encouraged by The HR Company’s skilled mediator to talk very honestly and openly during the process and, as a consequence of that, mediation can assist in the discovery and resolution of the root cause of the conflict that exists in the workplace and can prevent the same situation from arising in the future. This is less likely to be the case in a Tribunal type scenario. Mediation is not always a suitable dispute resolution method, however, if it is determined that it is appropriate then it can involve either an internal scheme or an external provider like The HR Company. Internal schemes mainly exist in larger organisations. During mediation The HR Company’s neutral mediator chairs the process which helps to dispel tension that may have built up between disputing parties. It is vital that levels of tension in the workplace are minimal especially where the parties are expected to continue to work together. The process can take an entire day or more. Either way the process is far less time consuming than going through the courts. Mediation is beneficial because it is a voluntary non-confrontational process – both parties will be more likely to co-operate as neither is obliged to be involved in the process. The stages of mediation are as follows:

Normally, both parties meet with the mediator separately initially so that the procedure can be discussed and so each party has the opportunity to illustrate their ideal outcome.
Usually a joint meeting is then scheduled in order that the issues may be heard.
Next, the issues are explored and an agreement is drawn up. The mediator will support the parties in solving their problems and will assist in ensuring that the agreements are workable. If he or she feels that it is necessary, the skilled mediator will separate the parties and will deal with them individually at various points.
The last stage in the process includes the explanation of responsibilities and the distribution of a copy of the agreement to all involved.

Sometimes, unfortunately, no agreement is reached. If this is the case then nothing that has been discussed throughout the mediation process may be used in any future proceeding should they take place. If you feel as though your employees may benefit from mediation please contact us so that we may discuss the process with you further.

By The HR Company Administrator|2017-01-02T10:59:56+00:00June 17th, 2015|HR Services|0 Comments

Breaks and Rest Periods in the Irish Workplace

Under the Organisation of Working Time Act 1997 every single employee in Ireland has a legal entitlement to breaks during their working day (or night) and is entitled to have clearly defined rest periods between their working days/nights. Under the Organisation of Working Time Act, 1997 a rest period is defined as any time that is not ‘working time’. In general, an employee is entitled to a 15 minute break after the completion of 4.5 hours of work. If the employee is working a shift of 6 hours then he or she is entitled to a 30 minute break (the first break of 15 minutes can be included in this 30 minute break allocation). The employer is not obliged to pay employees for these break periods and they are not included when counting the total amount of time that the employee has worked. The regulations vary slightly for different categories of employees - for instance, shop employees who work more than 6 hours at a time are entitled to a break of one consecutive hour between the hours of 11:30 and 14:30 if they are scheduled to be in the workplace during that time. Employees are entitled to 11 consecutive hours of rest in a 24 hour period – on top of this, an employee should receive 24 consecutive rest hours in every 7 day period and this 24 hour allocation should follow an 11 hour rest period. Where an employer does not give his or her employee a full 24 hour consecutive rest period throughout the course of one week he or she must give two of these 24 hour rest periods in the following week. This rest period, unless otherwise stated, should include a Sunday. Not all employees are governed by the break and rest period rules described above. Members of An Garda Síochána, The Defence Forces and employees who manage their own working hours are exempt. Family employees on farms or in private homes are also excluded from the Organisation of Working Time Act, 1997 directives. The working terms and conditions for people under the age of 18 differ from those listed here. They are regulated by the Protection of Young Persons (Employment) Act, 1996. In exceptional circumstances or emergencies an employer is exempt from providing the above mentioned rest periods but only where he or she provides equivalent compensatory rest. Where the rest period is postponed the employer must allow the employee to take the compensatory rest within a reasonable period of time. Employees working in transport activities or certain categories of civil protection services are exempt from the statutory break regulations specified above (the equivalent compensatory rest rules do not apply for these employees). Employers should be aware that employees have 6 months to make a complaint regarding breaks and rest periods in the workplace (in extreme circumstances this period can be extended to 12 months).

By The HR Company Administrator|2017-01-02T10:59:53+00:00June 17th, 2015|Breaks|0 Comments

10 tips on creating a Positive Work Environment

A Positive Working Environment is essential in order to ensure high levels of productivity. This kind of workplace promotes efficiency and makes sure staff are satisfeid in their roles and with their colleagues. A Positive working environment ensures conflict in the workplace is minimal and daily business operations, in general, run smoothly!   Positive Workplace Environment

What to do to create a Positive Working Environment...

Build Trust between all stakeholders
Communicate Positively and Openly – Transparency is key
Create Team Spirit – Cooperation and Synergy is hugely important
Be an approachable employer/manager so that issues are raised early
Expect the best from your employees and they will be encouraged to give you their best
Recognise your employees and their hard work and they will always work hard for you
Give credit where credit is due and take responsibility for your actions
Carry out employee evaluations and reviews and make the experience a positive one
Provide a physical environment that is positive – make them want to come to work
Make the work environment interesting – this will encourage creative thinking

These tips are derived from the guidelines set out by the Workplace Relations website http://www.workplacerelations.ie/en/.

Click the image below to download your Staff Suggestions Form

By The HR Company Administrator|2017-01-02T10:59:57+00:00June 17th, 2015|encouraging employees|0 Comments

No Adoptive or Maternity Leave Ireland for "Commissioning Mothers"

european Court of Justice, Surrogacy, Maternity Leave In September 2013 the legal opinion of the European Court of Justice was that an Irish teacher (Ms. Z), whose child was born through surrogacy, did not have an automatic right to either paid Adoptive Leave or Maternity Leave from her employment.

On 18^th March 2014 a European Court of Justice (ECJ) ruling, that referred to the mother who did not give birth to the child as the “commissioning mother”, upheld this opinion. The ruling stressed that it is the birth mother who should benefit from Maternity Leave even where she does not keep the baby after giving birth and even in cases where the mother who takes on the responsibility of the child after birth is the biological mother. The reason for this is to improve the health and safety of pregnant workers and and those who have recently given birth.

Ms. Z and her husband are the baby’s full genetic parents. When Ms. Z’s application for paid Adoptive Leave was denied she brought a complaint to the Equality Tribunal. The woman, who has no uterus as a result of a rare medical condition, claimed that she was discriminated against on the grounds of sex, family status and disability.

The woman was told by her employer that she could take unpaid Parental Leave instead of the requested Adoptive Leave; however, as the child was genetically hers and her name was on the American birth certificate, Ms. Z felt that she was being treated unfairly.

The surrogacy scenario can be a challenging one for all concerned and blurred lines surrounding what mothers are entitled to in the workplace just adds to the complexity of the situation.

The Equality Tribunal referred the case to the ECJ and the Court ruled yesterday that mothers like Ms. Z do not have any automatic right to Adoptive Leave or Maternity Leave.

Maternity Leave

In September 2013, the legal opinion of the Advocate General stated that Ms. Z’s differential treatment was not based on sex, family status or disability, as claimed, but instead on the “refusal of national authorities to equate her situation with that of either a woman who has given birth or an adoptive mother”.

The Court ruled that Ms. Z did not fall within the scope of the Pregnant Worker’s Directive as the Directive in question presupposes that the worker has been pregnant or has given birth to a child. The claim of discrimination on the grounds of sex failed as fathers in this situation are also denied leave. The claim of discrimination on the grounds of disability also failed as, the judgement stated that, while “a woman’s inability to bear her own child may be a source of great suffering” it does not amount to ‘disability’. The concept of ‘disability’ within the EU Employment Equality Framework Directive “presupposes that the limitation, from which the person suffers, in interaction with various barriers, may hinder that person’s full and effective participation in professional life on an equal basis with other workers”.

The recent revelation, that Irish women who have babies through surrogacy arrangements are not afforded the same rights as mothers who have adopted or given birth to their babies, has highlighted the uncertainties/complexities surrounding the issue of surrogacy in both Irish and EU law.

Surrogacy is becoming a more frequent option for women; however, legislation in Ireland has not kept up with this change.

The ECJ stated that member states are “free to apply more favourable rules for commissioning mothers” and paid leave for mothers, who have children through surrogacy arrangements, is being legislated for in The United Kingdom.

Maternity Leave On 30^th January 2014, Justice Minister Alan Shatter published the General Scheme of Children and Family Relationships Bill for consultation. According to Minister Shatter, the draft bill ‘seeks to provide legal clarity on the parentage of children born through assisted human reproduction and surrogacy’.

By The HR Company Administrator|2021-01-07T18:11:32+00:00June 17th, 2015|Policies & Procedures|0 Comments

Yearly Archives: 2015