Pregnancy may raise issues of equality and discrimination in employment. Discrimination on the grounds of sex or gender is unlawful. Discrimination specifically includes less favourable treatment of a woman on account of pregnancy or maternity leave. Failure to employ a person due to the possible effect on the employer of pregnancy and maternity leave constitutes direct discrimination.
The European Court of Justice has ruled in a number of cases, including a case relating to Ireland, that pre and post-maternity sick pay must be granted in relation to pregnancy-related illnesses and complications, on the same basis as ordinary sick pay.
EU Directives require, and the Unfair Dismissals Act has long since provided that dismissal by reason of pregnancy is an automatically unfair ground of dismissal. This applies even within the first year of employment. Unlike the position with most other grounds for dismissal, there is no waiting period in relation to this ground.
If the dismissal arises by reason of pregnancy, it is almost inevitable that it will be characterised as discriminatory. Any dismissal during pregnancy may constitute direct discrimination, even if it is consistent with a sick pay policy applicable to men and women. If it arises from sick leave, post pregnancy, it may not necessarily be discriminatory, if it is part of a non-discriminatory policy.
The non-renewal of fixed-term employment contracts, in circumstances of pregnancy, is likely to constitute direct discrimination. This is so even if pregnancy prevents the employee working during a substantial part of the term of the contract and even if it was not disclosed at the time of commencement of employment.
Dismissal on the grounds of a statutory prohibition on a pregnant woman working in a particular field or type of work is likely to be unfair where the employee is prevented temporarily only, from performing the functions of the job. Alternative arrangements are required.
In the case of a dismissal arising from pregnancy, there may be a claim for either discrimination or unfair dismissal. One or other option must be taken.
A pregnant employee is entitled to maternity leave of at least 26 weeks. She may take up to16 weeks’ additional maternity leave. She must notify the employer at the time of the original application or not later than four weeks before the due date of return.
Maternity leave rights generally apply to the child’s mother. In the event of the death of the mother, the employed father may take the balance of the maternity leave.
Generally, notice of maternity leave must be given to the employer as soon as practicable and at least four weeks before the expected date. A medical certificate must be given to confirm the pregnancy and specifying the expected week of confinement.
An employee may take maternity leave commencing on a chosen date provided that it commences no later than two weeks before the expected week of confinement. The commencement of leave may be varied on foot of a medical certificate.
If the baby is born early, the employer must be informed in writing within 14 days. Full entitlement to maternity leave applies as and from the date of birth.
The entitlement to maternity leave applies to an employee. An employee is a person employer under a contract of employment. The Act also extends to certain other categories of person.
A contract of employment is defined to mean a contract of service or apprenticeship or a person placed under an agency arrangement. A person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant is deemed to be an employee employed by the State or Government, as the case may be, under a contract of service.
An officer or servant of a local authority harbour authority or the Health Service Executive or a member of the staff of an education and training board are also deemed to be an employee employed by the authority, Executive or board, as the case may be, under a contract of service.
Where an employee become medically ill within four weeks of the end of maternity leave or additional leave, she may request termination of maternity leave. The maternity leave may end, and the employee may be entitled to be treated as being on illness based absence, depending on the circumstances and the terms of the scheme. The absence must be treated in the same way as illness in this cases, where the sick pay entitlement may arise.
A woman on maternity leave may request that all or part are part of the leave or additional leave be postponed if the child is hospitalised. Maternity leave may be postponed in whole or in part if the child is hospitalised for a period of up to six months. The employer must agree. Evidence must be produced of the hospitalisation and the discharge from the hospital. Leave may resume after the child ceases to be hospitalised.
Maternity Leave Pay
The provisions for maternity leave pay are made at national level. They are not harmonised by EU law. Statutory maternity leave is unpaid in Ireland. An employment contract might provide otherwise, but in the absence of agreement otherwise, the employee is not entitled to payment.
The employee is generally entitled to maternity benefit under Social Welfare legislation. This is at a rate of 75% of weekly earnings, subject to a cap at a relatively modest level.
The employer may top up statutory maternity pay at full or at a reduced rate. It may be adjusted to take account of the difference in taxation treatment. There may be full pay for maternity leave for a certain period, followed by a stepping down of pay during a later period.
A 2010 EU Directive contemplates that states will allow female self-employed workers and female assisting spouses and partners, maternity allowance for 14 weeks. However, states may decide if it is granted on a mandatory or voluntary basis. It is to be subject to the same terms and conditions as sick leave.
Member States have to take the necessary measures to ensure that female self-employed workers and female spouses and life partners may, in accordance with national law, be granted a sufficient maternity allowance to enable interruptions in their occupational activity, owing to pregnancy or motherhood, for at least 14 weeks.
The allowance is sufficient if it guarantees an income equivalent to an allowance in the case of a break in activities for reasons of health. In addition, Member States must take measures to ensure access to temporary replacement measures or existing national social services. Such services may provide an alternative to the maternity allowance.
The benefit of the contract of employment is preserved during the leave. Maternity leave does not affect the terms and conditions of the contract, other than those relating to remuneration. The employee retains annual leave and public holiday leave during maternity leave.
If pay rises generally are applicable to the grade or contract concerned, they must be applied. Failure to do so would constitute unlawful discrimination.
An employee may have a right to standard annual assessments, while on maternity leave. Otherwise, it may constitute discrimination relative to another employee, who has had the benefit of performance assessment.
It will depend on the purpose and nature of a bonus, as to whether or not its non-payment will constitute discrimination. Where a bonus is in effect pay for work done, it may be discrimination not to pay it, at least on a pro rata basis. In other contexts, where the bonus is not, in fact, pay for the period, it may constitute discrimination to reduce it, in respect of the maternity leave period.
Periods of training and apprenticeship are usually suspended during maternity leave.
Right to Return
There is a statutory right to return to work at the end of maternity leave. The notice must be given four weeks prior to return. This requirement may be waived. If the employer refuses to waive, it, an application may be made to the Workplace Relations Commission, which may allow notice to be given late.
The employee is entitled to return to work with the employer with whom she worked prior to the commencement of maternity leave. If there has been a transfer of business, the right to return applies to the successor.
The employee is entitled to take up the post held, prior to the commencement of maternity leave. The employee is entitled to return on the same terms and conditions or on no less favourable terms and conditions. Terms and conditions must incorporate improvements to the terms and conditions, which the employee would have been entitled to, if not absent.
Where the employment at commencement of maternity leave is not the employee’s usual or normal job, the employee is entitled to return to work, either in her normal or usual job or in that job, as soon as practicable, provided this can be done without contravention by the employee of any statutory provision e.g. health and safety. In this context, the job means work of a nature which he or she was employed to do in accordance with her employment contract in the capacity and place in which he or she is so employed.
Suitable Alternative Work
Where an employee is entitled to return to work but it is not reasonably practicable for the employer or successor to permit the employee to work in the same job, the employee is entitled to be offered by the employer or successor or associated employer, suitable alternative work under a new contract of employment.
Work under a new contract is suitable alternative work if
- the work required to be done is of a kind which is suitable in relation to the employee concerned and appropriate for the employee to do in the circumstances;
- the terms or conditions of the contract relating to the place where the work is required to be done;
- the capacity of the employee and other terms and conditions are not less favourable to the employee than those of the previous contract and incorporate any improvement to the terms and conditions of employment to which the employee would have been entitled if he or she had not been so absent from work during the period.
The employment may be with the same employer or with an associated or group company.
The Protection of Employees (Part-Time Work) Act and the code of practice on access to part-time working under the Industrial Relations Act, seeks to facilitate moves to part-time working, on the resumption of employment. The facility to move to work part time is a matter for agreement between the employer and employee and is not an entitlement. It is best practice that such requests are dealt with and considered in good faith.
Certain Dismissals deemed Unfair
It is an automatically unfair dismissal to dismiss an employee arising out of giving birth, breast-feeding, or any purported exercise of rights under maternity leave legislation. In order to be protected by the legislation, a pregnant worker must have notified her condition in accordance with the legislation.
If the employee is denied the right to return to employment, the date of dismissal is the due date of return to work.
Notice terminating employment is void if given during the maternity leave. This is so even if purports to take effect after the termination of the leave. Taking steps in preparation for termination is also invalidated.
Redundancy is possible in principle during maternity leave. It must be specifically shown that the termination is not in any way linked to pregnancy or gender.
An employee who is retained to provide temporary cover for an employee on maternity leave is not entitled to unfair dismissal rights if employment is terminated on the basis of the resumption of work by the employee after maternity leave. The employee must be notified at the outset that the position is to cover maternity leave.
Other Time Off
In addition to maternity leave, a pregnant employee is entitled to the following
- time off without loss of pay for antenatal and postnatal care. Prior notice must be given with proof of the requirement;
- time off without loss of pay to attend ante-natal classes other than the last 3 classes; an expectant father is entitled to time off without loss of pay for the last two antenatal classes;
- time off for breastfeeding in the workplace or a reduction in working hours for breastfeeding outside the workplace without loss of pay; If the employee ceases to breast-feed, this must be notified.
Health and Safety Leave
A woman who has recently given birth or who is pregnant should not undertake certain types of work. Employers must undertake a risk assessment in respect of workplace risk. In particular, an employer must undertake a risk assessment in relation to the health and safety of pregnant women in workplaces where there is likely to be a risk, by reason to exposure to processes, agents or other working conditions.
The assessment must take account of pregnant employees, those who have recently given birth and those who are breastfeeding. Appropriate measures must be taken to prevent and protect against the ascertained risk. Where there is an unacceptable risk to the mother or child, she must be provided with time off or work that does not pose an unacceptable risk. Medical certification may be required.
The employer must first endeavour to transfer the employee if possible, to other work not involving adverse health and safety risks. Where there is a risk to health and safety, and it is not possible to mitigate this through preventative measures or through other work, the employee must be granted health and safety leave.
Health and safety leave or alternative working hours may be required to be given to those who cannot perform night work. It may apply to pregnant or breast-feeding mothers in the first six months. If a registered medical practitioner certifies that it is necessary that an employee should not do night work during pregnancy or for a period of 14 weeks after, the employer must transfer the employee to daytime work.
Where this is not feasible on objectively demonstrable grounds then, health and safety leave may be granted, or the maternity leave must be extended.
Health and Safety Pay and Benefit
The employee is entitled to be paid for the first 3 weeks of health and safety leave. Thereafter, she can usually claim a social welfare benefit. There is provision for extension of the benefit with medical certification.
Health and safety leave benefit is equivalent to disability benefit and is paid at the same rate. It cannot be paid with maternity benefit. It is paid by the Department of Social Protection. It may be payable for up to 26 weeks after birth. The rates are based on the employer’s average weekly earnings but are subject to a cap.
Where an employee can do reduced, lighter work during pregnancy, it appears that the rate of pay may be reduced proportionately. However, the position has not been determined.
An employee who is breastfeeding is entitled to breastfeeding breaks where facilities are available in the workplace until the child is up to four months old. One hour may be taken off each working day by way of one, two or three breaks or in such other manner as may be agreed.
Facilities are not required to be provided if they give rise to anything more than a nominal cost. There is provision for notification to the employer in respect of cessation.
References and Sources
Employment Law Meenan 2014 Ch.13
Employment Law Supplement Meenan 2016
Employment Law Regan & Murphy 2009 ( 2nd Ed 2017) Ch.11
Employment Law in Ireland Cox & Ryan 2009 Ch.13
Maternity Protection Act 1994
Maternity Protection (Disputes and Appeals) Regulations 1981,S.I. No. 357 of 19811230
Maternity Protection (Time Off for Ante-Natal and Post-Natal Care) Regulations 1981, S.I. No. 358 of 1981
Maternity Protection Act 1994 (Commencement) Order 1995, S.I. No. 16 of 1995
Maternity Protection (Disputes and Appeals) Regulations 1995,S.I. No. 17 of 1995
Maternity Protection (Time Off For Ante-Natal and Post-Natal Care) Regulations 1995, S.I. No. 18 of 1995
Maternity Protection (Health and Safety Leave Certification) Regulations 1995, S.I. No. 19 of 1995
Maternity Protection (Health and Safety Leave Remuneration) Regulations 1995, S.I. No. 20 of 1995
Maternity Protection (Maximum Compensation) Regulations 1999, S.I. No. 134 of 1999
Maternity Protection (Time Off For Ante-Natal Classes) Regulations 2004, S.I. No. 653 of 2004
Maternity Protection (Protection of Mothers Who Are Breastfeeding) Regulations 2004, S.I. No. 654 of 2004
Maternity Protection (Postponement of Leave) Regulations, 2004, S.I. No. 655 of 2004
Maternity Protection Act 1994 (Extension of Periods of Leave) Order 2006, S.I. No. 51 of 2006
Maternity Protection (Amendment) Act 2004
Maternity Protection (Amendment) Act 2004 (Commencement) Order 2004, S.I. No. 652 of 2004
Maternity Protection (Amendment) Act 2004 (Commencement) Order 2005, S.I. No. 131 of 2005
Other Irish Books
Employment Law Forde & Byrne 2009
Principles of Irish Employment Law Daly & Doherty 2010
Employment Law Contracts (Book & CD-ROM) Beauchamps, Solicitors 2011
Periodicals and Reports
Employment Law Yearbook (annual) Arthur Cox
Employment Law Reports
Irish Employment Law Journal
Employment Law Review
Workplace Relations Commission http://www.lrc.ie/en/
Irish Human Rights and Equality Commission https://www.ihrec.ie/
Health and Safety Authority http://www.hsa.ie/eng/
The Employment Law Review 8th Ed. Erika C. Collins 2017
Industrial Relations Law Reports
Employment Law in Context: Text and Materials 2nd Ed. David Cabrelli 2016