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 18th 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.
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.
On 30th 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’.
Managers are faced with a difficult task as they are continuously asked to reduce costs while simultaneously preserving the quality and service levels throughout the business.
Every company should implement a minimum waste policy to encourage employees to be more aware of their actions and their use or misuse of resources in the workplace and beyond.
Minimising the amount of waste in any organisation will have a positive effect on the bottom line. Consequently, introducing a minimum waste policy is essential if the business is to operate in the most cost-effective and efficient manner possible.
Employees should be obliged to avoid extravagant use of the company’s services, time and energy. Employees should be encouraged to take extra care during their normal work duties by avoiding unnecessary use of any resources within the Company.
Employees should be trained so that they handle all machines, equipment and stock with the utmost of care. Employers should have a policy in place that deals with the conservation of energy.
This policy would direct employees as to how they should proceed when it comes to dealing with lights and heat and so on. The use of all unnecessary lighting and heating should be prohibited and lights/heat should be turned off when their use is not required.
Doors/windows should be opened/closed where possible in order to maintain temperature levels. Similarly, taps should not be allowed to drip and any concerns about resources should be reported to management so that they may be evaluated and rectified.
The use of paper and ink throughout the course of the working day is something that a lot of companies find to be expensive. It is important that employees only print items that they need to have in hardcopy in order to reduce the waste of paper and ink. It is also significant for employers to encourage employees to print on both sides where possible. E-mailing, rather than posting, documents is another practice that should be encouraged. Recycling/reusing paper, where possible, is also a practice that should be considered.
If it is a case that an employee finds himself or herself without assignments to complete during working hours or if their work has come to a standstill for one reason or another then he or she should be encouraged to offer assistance to colleagues who have yet to complete their workload.
In terms of productivity, employees should be prepared to start their working day by the time they are scheduled to begin work and should proceed with their work-related activities without delay. The same process should be followed after break/lunch periods and employees should not conclude their work until the time that they are scheduled to do so.
If it becomes apparent that certain employees are struggling to organise their time then the provision of time-management training should be considered by management. It is also important to ensure that employees are aware of the most efficient methods of carrying out routine tasks (such as searching for documents or preparing spreadsheets) so time is used in the most efficient manner possible.
There are many techniques that a company can use to improve efficiency and exploring and implementing these methods is very important if a company is to remain competitive. 
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 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.
