Covid-19 – Maternity Entitlements

This note is part of a series that the lawyers of Reddy Charlton will issue on the major legal, personal and business issues that will confront us all during the Covid-19 crisis.

The Covid-19 outbreak has resulted in changes to the way most of us work, but can be of even greater concern for those employers and employees trying to grapple with maternity entitlements as a result. Here are some of the key issues which have arisen in respect of maternity leave and pay.

Employees going on maternity leave

If an employee is pregnant and the employer has no work available to the employee and therefore cannot pay the employee resulting in a decision to lay off the employee or make her redundant, then the employee should apply for the Covid-19 Pandemic Unemployment Payment (PUP).

When an employee is paid the PUP or the Temporary Covid-19 Wage Subsidy Scheme (TWSS) payment, then this time will be treated as if the employee is making social insurance contributions at the normal insurance class. As a result, for those who are on PUP or the TWSS they may still be eligible for the maternity benefit if they have enough social insurance contributions.

Therefore the employee should also submit the maternity benefit application as normal where they are still eligible for the maternity benefit. Employees should not be in receipt of both the PUP and their maternity benefit and therefore should close the PUP claim when an employee commences maternity leave.

Employees returning from maternity leave

It might be the case that the employer places the employee on lay off or makes the employee redundant when the employee returns from maternity leave. For employees in that situation who are unable to return to employment due to Covid-19 the employee can apply for the PUP from when the employee was due to return to work from maternity leave. The date last worked for the purposes of a PUP application would be the date that the employee was due to return.

Employers should remember that employees who are on maternity leave are protected under the Maternity Protection Act 1994 (as amended) and that while consultation can take place with an employee who is on maternity leave is permitted, an employee cannot be given notice of redundancy while on either maternity leave or additional maternity leave.

Returning from maternity leave and TWSS

Issues have arisen in respect of employees who are set to return to employment following a period of maternity leave, where other employees may be in receipt of TWSS. This is due to the fact that an employee’s average Revenue net weekly pay figure which is used for the calculation of the TWSS is based on January and February payroll submissions made to Revenue for an employee. In cases where an employee has not had their usual pay in January and February as a result of maternity leave for example, Revenue guidance is that the employer can either:

• operate the scheme based on Average Revenue Net Weekly Pay, or
• pay the employee the appropriate wages without receiving a subsidy refund.

Essentially this means that they are not able to avail of TWSS. As a result this has been criticised as it means an employee returning from maternity leave who did not receive her usual pay in January and February will be ineligible for the payment. It has been described as a discriminatory practice where those women returning from maternity leave and were expecting full salary may end up being laid off rather than put on the TWSS. The alternative for the employer is to simply pay the employee’s wages without a subsidy refund.

This issue raises tricky questions for employers when it comes to dealing with their staff who are returning from maternity leave. Employers will need to be cognisant of the rules outlined in the Maternity Protection Act 1994 (as amended) and the Employment Equality Act 1998 (as amended) in order to avoid discrimination claims on the basis of either pregnancy or gender.

How can Reddy Charlton help?

During this Covid-19 crisis, Reddy Charlton Solicitors are eager to support, encourage and guide your business. For further information on this topic, please contact Laura Graham at lgraham@reddycharlton.ie