Change of contract regarding paid maternity leave - legal?

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mumofthree

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I am working for a small private company in Dublin as a permanent employee.

The contract contains provision for paid maternity leave as long as one has been with the company for more than a year at the time of going on maternity leave.

I was working full time for them when I got pregnant, but I didn't qualify for paid maternity as per my contract, as I had not been there long enough. Fair enough.

I came back from unpaid maternity to go part-time, and NOW THAT I AM BACK was presented with a new contract reflecting my new hours BUT also removing all rights to future paid maternity benefits.

It is purely a reduction in my benefits with no compensatory pay / benefits offered.

I had previously been told verbally that a new standard contract was to be created for new employees, but that I would not be affected.

I immediately politely pointed this out (by email) and suggested we continue as before with the same terms but changing the working hours only. Obviously the maternity benefit like any benefit would be pro-rated.

No response yet.

Question 1.
Can they change my contract unilaterally like that? I guess so, but not sure.

Obviously I have objected and I will continue to do so, but ultimately I guess if I don't agree to it they can say, ok, we are letting you go?

What is the legal position in Ireland on this please?

Question 1b.
The legal position is the main thing I need to know.

However, I would also be interested in hearing whether people think that this is bad HR practice on the part of my employer.

**************
Now, here's the complication, but a very relevant one....

I just found out I am pregnant again, only just a few weeks.

I know its early days but hopefully please God all will go well.

My pregnancy has happened after the new contract was first sent to me, but of course I had already voiced my objection and have certainly not agreed or signed it. Note: I have a doctor's cert to say I am pregnant.

This time, based on my old contract, I would be entitled to paid maternity leave.

so, Question 2:
Does my current pregnant status have any bearing on the situation? e.g. maybe its illegal to change the terms of a contract regarding maternity leave once you know your employee is pregnant.

The reason I need to know is so that I know whether to disclose it (earlier than normal) if they force the issue.

Of course depending on the answer to Q1, I may not have to disclose it early, which I obviously hugely prefer.

Again, correct legal info would be hugely appreciated.

Thanks for reading this far and for your help.
 
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Re: Change of contract regarding paid maternity leave - legal? UPDATE

UPDATE:

Contacted NERA (employment rights people) but did not get a straight answer, except to say that no-one has to accept a change in employment terms and conditions, and that if the issue is forced then I would have to go to mediation.

Contacted Equality Commission and they said that it is not clear cut but it would seem that they have reacted to my earlier maternity leave by deciding to take away my maternity benefit, so would seem to be discriminating against me on the basis of my maternity. They said I should take legal advice if the issue is not dropped.

Any legal eagles out there who can comment please?

Any HR gurus who can comment on whether this is bad practice or not please?

Would really appreciate your help at this time.
 
You need to check what the position in relation to other part time emploees prior to the change in contracts.

Otherwise - what NERA told you is the first port of call as issues should be dealt with locally in the first instance. If you are not happy at this stage you can then go third party to a right commissioner.

IMO they are unreasonable and took out the clause because they knew it was highly likely you were going to avail of mat leave again and yes it is bad practice.
 
Mumofthree,

A few points are relevant:

1: There is no legal obligation on an employer to pay you whilst on maternity leave

2: Any payment by an employer to an employee on maternity leave, arises in 3 ways:

(a) As a contractual right of the employee - set out in their individual contract of employment

(b) In accordance with a Company maternity policy - usually set out in an employee handbook, or

(c) At the employer's discretion on a case-by-case basis.

For category (a) , maternity pay is a contractual right that can be enforced by an employee. A contract cannot be unilaterally varied by an employer without agreement by an employee - i.e "consideration" (usually in the form of extra pay / bonus entitlements) must pass between the employer and employee
For category (b) it is unlikely that an employee could argue that maternity right is a legal pay. Company policies may be changed at will - simply by notification. In order for an employee to claim that a legal right under an employee handbook, it must be shown that the relevant policy forms part of that employees contract with the Company.
For category (c) it is highly unlikely that an employee could assert a right in law to be paid whilst on maternity leave - particularly if there a written contract of employment in place.

It appears that your case falls within category (a). If you have not agreed to a variation of your contract, it is impermissible of your employer to unilaterally vary a specific term concerning payment on maternity leave.

If it is the case that your terms and conditions of employment were altered when you were on maternity leave, your employer may be in breach of the Maternity Protection Acts.

If it is the case that your employer changed your terms and condition of employment due to the fact that you moved to part-time, your employer may be in breach of the Protection of Employees (Part-Time Work) Act 2001 - particularly if full time employees (with one years experience) are paid while on maternity leave.

I would advise that you inform your employer that you intend to rely on your original contract of employment as you have not consented to any variation of your contract.
 
I agree , the common practice is that a maternity contract is only "short term contract", and not a break in contract. If you have not signed yet, hold out, as I believe your maternity contract has an end date, therefore you return to original contract. Ask HR for details of why they are changing it in writing.
 
Quoting from Becky:

You need to check what the position in relation to other part time emploees prior to the change in contracts.
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I wouldn't have access to that information but I suppose if it came to mediation or whatever I suppose I would. I think all contracts would have included the maternity thing but not sure, as its a small company its hard to know what would have been done.

Otherwise - what NERA told you is the first port of call as issues should be dealt with locally in the first instance. If you are not happy at this stage you can then go third party to a right commissioner.
Click to expand...

Do you mean mediation first assuming we can't agree, then escalate to rights commissioner?

IMO they are unreasonable and took out the clause because they knew it was highly likely you were going to avail of mat leave again and yes it is bad practice.
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Thanks for that, I am glad its not just me who thinks that way. And thanks for your input overall.
 
NiallP said:
1: There is no legal obligation on an employer to pay you whilst on maternity leave
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Yes, agreed.


Yes, its in my original contract, which is the only one I agreed to and signed. I have not agreed to a variation, and have informed them that I want to keep the original terms and conditions, specifically those pertaining to maternity payment.

If it is the case that your terms and conditions of employment were altered when you were on maternity leave, your employer may be in breach of the Maternity Protection Acts.
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No, the amended contract was emailed to me after I returned.


There is no other female with one year's seniority, and as far as I know, no female with the original contract similar to mine, as the only other female is new to the company and would probably have got the new contract.

I have no way of knowing whether the change to part-time was the trigger for sending me a new contract, or whether they would have done this anyway because they had created a new contract for new employees and decided to put me on the same contract. I suspect the latter. Probably a moot point. The main points arguably are that they are trying to impose a unilateral change to my contract, wholly to my detriment, with no compensatory aspect, and also that they seem to have decided to do that in light of my first maternity leave having occured.

I would advise that you inform your employer that you intend to rely on your original contract of employment as you have not consented to any variation of your contract.
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I have not said that in so many words, I have said that I suggest that we stick to the same Ts and Cs, and merely change the working hours to reflect my new status. I also stated that any contract would need to reflect my seniority within the company.
I could send them an email with the form of words you have suggested, but at the moment I think its best if I await their response before escalating it further, they may decide its best to not pursue this. IN any case my intent is clear in that I did not agree the contract and proposed to retain the existing benefit.

Thank you so much for the comprehensive reply, I appreciate it very much.
 

thanks for your input.

What do you mean when you talk about a 'maternity contract'?

I have my original signed contract and no other except for this new one that has been sent to me but not agreed or signed by me.

Can you explain a bit more please?

We do not have any HR, its a small, owner-operated company.
 
 
What is very important here is they told you that you would not be affected by the new contract changes. It would be great if you had it in writing but even so try and remember who informed of you of this and when.
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Good point. As it was not something I expected to change, I did not ask for that statement in writing - obviously would have sounded very mistrustful and I think no-one would have expected to then be presented with a changed contract.

In any case, I know exactly the day/time/meeting/person when this was said so can't do any better than that.

I'd be very surprised if the Rights Commissioners doesn't throw the book at them.
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Great to hear that view. Hopefully it will not come even close to that, am sure we can sort it out, but nice to have a feel for roughly where I stand before proceeding.

I intend to adopt a wait-and-see approach, they may not get around to pursusing this, and hopefully in about 9 weeks time I will be able to inform them of my condition. By that stage, I doubt if they would have the nerve to pursue it, but can only wait and see.

Thanks again Becky.
 
One other point has occured to me:

It seems from your responses that what they have done is probably dubious / dodgy / on shaky ground - regardless of my current pregnancy, at least that is what I think you are saying?

So I don't really have to mention it to them straightaway if they continue to pursue this issue and try to get me to sign a new contract.

It makes sense for me to refuse to sign regardless of my condition.

I guess my condition just makes the issue all the more real to me, and I guess also means that the issue will have to come to a head in about 9 weeks even if they let it slide until them.

So, having said all that (just trying to get this straight in my head), I guess I am ok to keep schtum for now, which is really the most important thing for me right now.
 
I think you should write to them and make it clear that you do not accept the amended contract. You do not have to disclose your pregnancy.

Raise a formal grievance if necessary. If it comes to tribunal you have to demonstrate that you gave your employer a chance to amend their error.

You should not have different terms just for being a part timer, other than the working hours. There is an EU directive precluding this. An hour of legal advice would be money well spent.

I am not a lawyer but have had exposure to employment law.
 
Thanks Diziet.

I think I will await their next move, at least for a few weeks. If I send in a statement saying that I am going to rely on my existing contract, it could antagonise them. I still have to work with / for them and don't want to jeopardise good working relations. I'm sure that neither do they, as our work is specialised and they do not find it at all easy to get experienced people.

I think there is a fair chance they will (eventually) agree to continue with the old contract, if and when they get round to discussing it with me.

If they give any indication that they want to impose the new one, I will at that point send in the statement as you and Niall suggest.

If I don't hear anything within a few weeks, I will send them an email asking them to have a meeting to resolve the issue, and I guess probably will mention at that stage that I am continuing to rely on my existing original contract.

If they still don't revert by the time I am ready to tell them my news, I will send a further email asking for a meeting.

If that doesn't happen I will just have to inform them of my status and take it from there, continuing to insist that I am relying on my original contract.

I hope that this will indicate that I gave them every chance to amend their error, and will document it and keep copies.

Hopefully it will get resolved quickly and amicably in my favour.
 
Update: reply from the Equality Authority.
--------------------------------------------------------------------
In regard to your first question under the Maternity Protection Acts 1994 and 2004 an employee is entitled after maternity leave

- to return to work
- with the same employer, or the new owner (if there was a change of owner)
- to the same job
- under the same contract and
- under terms and conditions that are
(i) not less favourable than those that would have applied to the employee and
(ii) incorporate any improvement to the terms and conditions to which the employee would have been entitled if she had not been absent.

An employee on maternity leave is deemed to be in the employment of the employer while absent. The employee is to be treated as if she is not absent. The absence will not affect any rights or obligations related to the employee's employment conferred by legislation, contract or otherwise.

An Information booklet "About the Maternity Protection Acts 1994 and 2004 Information on entitlements under Maternity Legislation" is available to download from our website www.equality.ie.

In the event of a dispute under the Maternity Protection Act you may refer a claim to the Rights Commissioners within 6 months from the date on which the employer is informed of the initial circumstances relevant to the dispute.

Rights Commissioners
Tom Johnson House
Haddington Road
Dublin 4

Telephone: 01-613 6700
LoCall: 1890 220 222
Website: www.entemp.ie


Regarding your second query if an employer were to discriminate against an employee because she was pregnant she could take a case on the gender ground under the Employment Equality Acts 1998-2007. If you feel that you have been discriminated against on the basis that you have availed of maternity leave or about to avail of maternity leave you could lodge a claim for discrimination under the Employment Equality Acts 1998 -2007.

A complaint of this nature on the gender ground should be raised in the first instance with your employer in order to provide an opportunity for resolution of the problem. However, although this may be desirable, it is not a requirement of the Act. In any event if you feel you are unhappy with your employer’s response to your complaint you may take a case yourself before the Equality Tribunal.(see contact details below) and ask for a Form EE-1 (Complaint of discrimination in relation to Employment). The Equality Tribunal is the quasi-judicial body established to investigate, hear and decide on claims of discrimination.

Please note that anybody wishing to make a claim of discrimination must do so within six months of the incident.

A booklet on the Employment Equality Acts 1998-2004 is available to download from our website www.equality.ie.


The Equality Tribunal
3 Clonmel Street
Dublin 2

Phone No: (01) 4774100 or E-mailinfo@equalitytribunal.ie
www.equalitytribunal.ie


On the wider issue of terms and conditions of employment or unfair dismissal you may wish to contact NERA

The National Employment Rights Authority
O'Brien Road
Carlow

LoCall 1890 80 80 90
info@employmentrights.ie
[broken link removed]

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This was very useful information.


I replied asking them to clarify whether the fact that I returned to go on a part-time basis would have any bearing on their right to change my contract / benefits.


Will share the reply when I get it.
 
mumofthree,
From what I can understand you want to change the working hours of your existing contract but dont want your employers to change the maternity part of the contract.

If you want to change your hours then it a brand new contract so your employer can request what they want into the NEW contract.

Until the new contract is agreed you are covered by your old contract and your employer can insist that you work your full existing contract hours, not your reduced hours.
 
Thanks for your response sparkey.

sparkey said:
mumofthree,
From what I can understand you want to change the working hours of your existing contract but dont want your employers to change the maternity part of the contract.
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Correct.

If you want to change your hours then it a brand new contract so your employer can request what they want into the NEW contract.
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May I respectfully ask, are you sure about that? It's just that some pretty experienced / specialised people have not made that comment.
That's not to say that you are wrong, its just I thought it would be considered an amendment to the contract to change the hours. It would be helpful if you could explain a bit further the basis of your opinion on that please?

Until the new contract is agreed you are covered by your old contract and your employer can insist that you work your full existing contract hours, not your reduced hours.
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OK, but they have not done so to date, and they have paid me pro-rata, so I think its fair to say that this part of the working arrangement has been agreed and is being borne out in practice, without any new contract being agreed or signed.

The maternity part has not been agreed, in the sense that I have told them in writing that I see it as contradicting the existing current contract, and as contradicting the earlier verbal comment that any changes to maternity benefit would not apply to me, and that I want to stick to the original terms and conditions in this respect.

Further explanation would be appreciated if you could please.
 
OK, am going to have to assume that the opinion given by Sparkey is not correct as I have not received any further response to back it up from Sparkey or anyone else - sorry Sparkey.

Response from equality.ie to follow.....
 
I replied asking to equality.ie them to clarify whether the fact that I returned to go on a part-time basis would have any bearing on their right to change my contract / benefits.

Response from equality.ie:

"Following Maternity Leave an employee is entitled to return to work under the same contract and under terms and conditions that are not less favourable than those that would have applied if she had not been absent.

If the employee returned to work on a part- time basis as requested by her this constitutes "conditions which are not less favourable than those that would have appllied if she had not been absent on maternity leave".

The fact that she requested a change to the number of hours she will be working on return should have no adverse affect on her entitlements under the Act.

Questions which will need to be addressed.
Was she treated less favourably than someone who did not go on maternity leave and requested a reduction in working hours would have been treated?
[this is hard to say as there is no example of a female who did this, as far as I can ascertain at the moment. However, I feel that there is enough reasonable doubt there to imply that the fact that I took maternity leave once, was the cause for my benefit being removed.]

Does the company have a different policy re all part-time staff?
[I believe that they do not, but can't ascertain this at the moment. In any case, this was not given as the reason for removing the benefit.]

The bottom line is that you cannot be discriminated against i.e treated less favourably because you went on maternity leave.

In the event of a dispute under the Maternity Protection Act you may refer a claim to the Rights Commissioners within 6 months from the date on which the employer is informed of the initial circumstances relevant to the dispute. "

Based on all the input that I have had so far, it seems to me that, at best, the employer is on very shaky ground in what they are trying to do.

If anyone can add any further insight to the situation I would be very grateful, particularly anyone with a legal or HR perpective. Thank you.
 
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I agree with you, check below ....


[broken link removed]

When can a part-time worker can be treated less favourably than a full-time worker?

A part-time employee can be treated less favourably than a comparable full-time employee where such treatment can be justified in two circumstances:
  • Where the part-time worker's less favourable treatment can be justified on "objective grounds"
  • Pensions
"Objective grounds" for less favourable treatment

"Objective grounds" for treating a part-time worker less favourably than a comparable full-time employee are based on considerations other than the status of the employee as a part-time worker.

These grounds occur where the less favourable treatment is necessary for the purpose of achieving a legitimate objective of the employer.
However, what may be not considered as objective grounds in relation to less favourable treatment of a part-time employee may be considered objective grounds in relation to a casual part-time employee. (Casual employees are those with fewer than 13 weeks' service who are not in regular or seasonal employment or are casual based on a collective agreement to that effect.)
 
Very interesting, thanks crumdub12!!

All the more reason not to go changing the contract just because I have gone from full-time to part-time, as there are no 'objective gorunds' for doing so.
 
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