Dear Claudine,
I have been employed as a beautician for three years and after falling pregnant decided that I would take my full maternity leave. I talked to my employer and she said that I could take the time but that she would have to employ someone in my absence. I made it very clear to her that I would be returning to work full-time again once my maternity leave expired and she said that she would keep my job open for me. I telephoned her about six weeks before I was to return letting her know my actual date of return. When I returned to work she explained to me that the girl who had filled my position temporarily was going to stay on and she could only offer me one day a week. I was very upset and we had an argument. She said that things may improve and she will give me more days, if that happens. I cannot afford to work for one day a week and be able to pay my bills. I left my job on the 6th of May last as I was not getting any more days. I had always made it clear to her that I would be returning to my full-time position after the baby was born. I have applied for some positions but I just think that I have been treated very badly and wanted your advice. What can you advise me to do?
Emma.

Dear Emma,
Thank you very much for your letter. Firstly, Congratulations to you on your new arrival! I am sure you are both delighted and relieved that you have a healthy new baby and I hope that you are also making a good recovery. I can only imagine how difficult it has been for you to discover that you no longer have a full-time position and with the added responsibility of a new baby, it really must be a terrible shock. Firstly, the Maternity Protection Act, 1994 is the main legislation on Maternity leave in Ireland. A pregnant employee is entitled to 18 weeks maternity leave as a minimum period of leave. The employee is obliged to notify their employer in writing of their intention to take maternity leave and the leave must commence no later than two weeks of the employees due date. The Act allows an employee to extend their leave by a further one month where the baby is born after the expected due date. An employee can also request a further eight weeks, beginning after the end of the maternity leave. This additional leave is unpaid and is at the employee’s own expense. Again the employee is expected to notify her employer no later than 4 weeks before her expected date of return. There is no provision in Irish law for an employee to be paid when on maternity leave and generally employees on maternity leave are entitled to claim social welfare benefits. An employee can claim 70% of their reckonable earnings provided PRSI contributions have been paid. However there is a maximum limit of €230 per week allowable to each employee. The Social Welfare benefit is available for the 18 weeks maternity leave but not for the eight weeks of additional maternity leave. The Act also entitles pregnant employees to paid time off from work for ante-natal and post-natal care including paid time off to attend medical appointments.
Of particular importance is a provision of the Act which deals with “protective leave” of an employee when on maternity leave and requires that an employee’s statutory and contractual rights remain in place while on maternity leave. Any termination of an employee’s notice when they are on maternity leave is void. Also, another provision of the Act provides for a general “Right to return to work” to the position held by an employee before they went on maternity leave. However, this is clarified by a further section in the Act which provides that where an employer cannot practically allow the employee to return to their original position, then there is a duty on the employer to offer her suitable alternative employment under a new contract but the new conditions of employment cannot be less favourable or inappropriate for the employee concerned.
An employee is not automatically entitled to return to her job unless she has notified her employer of her written intention to return to work. The duty is on the employee to notify her employer in writing of the expected date of her return to work in advance of 4 weeks of her expected date of return but this time limit can be extended where there are reasonable grounds for her failure to give her employer notification. You have told me that you phoned your employer letting her know the date upon which you were returning to work. This may be a weakness in your case unless you can justify why you didn’t put it in writing to your employer as opposed to a phone call. If there are no reasonable grounds for your failure to notify your employer then this failure may be taken into account by a Rights Commissioner, Tribunal or the Circuit in making their decision of your rights under the Unfair Dismissals Act.
The Act deems that any attempted termination of an employee’s employment while she is on maternity leave will be void. Dismissals when an employee is on maternity leave are automatically considered to be unfair and this includes women being made redundant during the maternity period and not being offered suitable alternative employment. Generally, disputes are referred to a Rights Commissioner within six months of the employer being informed of the dispute but this may be extended by a Rights Commissioner in exceptional circumstances to 12 months. A Rights Commissioner may award up to twenty weeks remuneration. An Appeal of a decision to the Rights Commissioner can be made to the Employment Appeals Tribunal within 4 weeks of the decision.
The Equality Act 2004 has also greatly added to the protection of employees in Ireland. It prohibits discrimination on the grounds of gender, marital status, family status, sexual orientation, religion, age, disability race/colour/nationality and membership of the Traveller community. The Act prohibits discrimination in employment in relation to access to employment, conditions of employment training/experience and promotion. The Act treats gender discrimination differently to discrimination on the other 8 grounds as outlined above. Gender discrimination claims may be brought directly to the Circuit Court or the Equality Tribunal but claims under one of the above 8 headings can only be brought before the Equality Tribunal. It is important to note that there is no set limit on any monies that may be awarded by way of compensation, if a client decides to proceed with a gender discrimination case directly to the Equality Tribunal. The Employment Equality Act applies to all employees regardless of length of service.
I would advise that you make an application in writing to the Employment Appeals Tribunal and the Equality Tribunal explaining that your employer has breached the Maternity Protection Acts, the Unfair Dismissals Acts, and the Employment Equality Acts. I would refer you to their websites www.labourcourt.ie and www.equalitytribunal.ie . You have six months to do so from the date that your employment was terminated. Your employer effectively left you with no option but to leave and their actions are prohibited under the Acts as outlined. Alternatively, you may wish to consult a solicitor in relation to your application but please bear in mind the strict time-limits involved with particular reference to the date you returned to work after your maternity leave.
I hope that the above is helpful and wish you every success in your future.
With Every Good Wish,
Claudine