Family Status and Work

An employee with a family does not have a right to reduced or special working hours. However, the courts and the Workplace Relations Commission have tended to require that an employer treat any application for family friendly hours reasonably, having regard to the needs of the business.

This was demonstrated in the case of Tesco Ireland v Walsh DEE062. In principle, it appears that in such cases, an employer would be required to establish evidence of having acted reasonably. The Industrial Relations Act 1990 (Code of Practice on Access to Part-Time Working) (Declaration) order 2006 (S.I No. 8 of 2006) provides factors to be examined in such a situation:

• the personal and family needs of the applicant;
• the number of employees already availing of part-time work;
• additional resources required to meet part-time cover and other business/operational needs of the organisation and implications of same;
• the urgency of the request;
• the period of time covered by the request;
• the employee's legal rights and entitlements;
• the equal opportunities policy of the organisation;
• how the applicant's proposed revised hours will fit with the tasks of his/her job and how these tasks will be performed during the period of part-time work;
• the implications, if any, for the applicant's conditions of employment;
• the effect, if any, on the staffing needs of the organisation;
• procedure for reviewing the arrangement.

Employees with caring responsibilities may be less able to adapt to certain working conditions and may find it more difficult to conform to certain work environments, including working after close of business, and requests to travel and so on.

Any such requirement could constitute indirect discrimination on the ground of family status and, depending on the case, on the gender ground.

In such circumstances, an employer would be required to objectively justify these requirements and demonstrate that they are appropriate and necessary.

The EEA prohibit less favourable treatment, on the basis of pregnancy, during maternity leave and on a woman’s return to work from maternity leave, on the gender ground and/or the family status ground.

This means that woman cannot be treated less favourably by her employer because she is pregnant, on maternity leave or, has a family.

Example An employer gives you tasks below your grade upon your return to work from maternity leave.

Health and safety concerns

Where health and safety concerns arise in relation to the pregnancy, an employer may place a pregnant woman on certified leave.

However, an employer must first consider whether a pregnant employee can be accommodated in alternative, and appropriate, work.

Dismissal and the non-renewal of contracts

Equality law prohibits pregnancy-related dismissal, and the non-renewal of a fixed-term contract during pregnancy.

Example An employer refuses to renew your contract when you take maternity leave.

An employer cannot take steps during a woman's maternity leave with a view to dismissal upon return to work. A woman on maternity leave cannot be made redundant.

To justify a dismissal during pregnancy, an employer must show that the dismissal is on exceptional grounds and not associated with the pregnancy. The employer must notify the employee in writing of these grounds.

Returning to work

A woman cannot be treated less favourably on her return to work after maternity leave, and she is entitled to return to the same position, or a suitable alternative position.

Although there is no right to reduced hours on a return to work, there is an obligation on an employer to treat applications for family friendly hours reasonably. An employer’s refusal to grant an employee reduced hours should be based on objective reasons relating to the proper operation of its service, and not on the employee’s sex, marital or family status.

The Maternity Protection Acts 1994-2004 also provide for minimum statutory legal rights and protections afforded to pregnant employees, those on maternity leave, and for those returning to work after maternity leave.

Breastfeeding

Treatment which confers benefits on women in connection with pregnancy and maternity including breastfeeding is allowed and not considered discriminatory.

Complaints mechanisms/remedies

Complaints mechanisms/remedies are also available under the Maternity Protection Acts. The Workplace Relations Commission can provide more information on the Maternity Protection Acts and the complaints mechanisms/remedies available under this legislation.

The Paternity Leave and Benefits Acts 2016 (PLBA) provides for minimum statutory protections to parents (other than the mother of child) following the birth or adoption of a child.

The Workplace Relations Commission can provide for specific information on the statutory entitlements and protections under the PBLA.

Employers should ensure that their employment policies and practices reflect this legislation and are in keeping with equality law.

Example If you are treated unfavourably by your employer or you have been discriminated against because of your intent to avail of your entitlements under the PLBA, you may be able to claim a remedy under the Employment Equality Acts.