Background:

The Complainant has been employed by the Respondent, the nation of Brazil, in its Irish embassy as a support auxiliary worker since 21 March 2020. The Complainant went on maternity leave from 1 August 2021 to 9 February 2022. The Complainant expected that the Respondent would pay her a “top up” payment of €1279 per month which would make up the difference between the state maternity benefit and her typical monthly salary. The Complainant and a colleague gave evidence that such a payment had been made to others in a similar position, including another woman on maternity leave and a man who was on sick leave. However, the Respondent told the Complainant she would not be entitled to such a benefit on 24 August 2021, after she had already commenced her maternity leave and given birth. The Complainant alleged this was a payment to which she was entitled and was “properly payable” under the Payment of Wages Act 1991.  The Respondent said this was not a contractual entitlement and was purely a discretionary payment which it elected not to exercise in the Complainant’s circumstance.

The Complainant was also advised prior to her maternity leave by the Respondent that she would be entitled to carry her annual leave accrued until after her maternity leave concluded. After issuing a grievance to the Deputy Head of Mission regarding the top-up issue, the Respondent advised the Complainant that she was not entitled to carry over these additional days. This revocation was alleged by the Complainant to be retaliation for having raised a grievance regarding the top up payments. The Respondent said this was simply the correct application of policy and that prior statements were incorrect in law and contract.

Outcome:

The Adjudication Officerfound the Complainant had no contractual right to “top-up” payments during her maternity leave, and as a result, her claim under the Payment of Wages Act 1991 failed. However, the Adjudication Officer that the revocation of the Complainant’s accrued annual leave days was a violation of the Organisation of Working Time Act 1997, and that this revocation was victimisation for raising a gender-based grievance, contrary to section 74(2) of the Employment Equality Act 1998. The Respondent was required to restore the annual leave days deducted from the Complainant and to pay the Complainant €13,554 in respect of the victimisation.

Practical Guidance for Employers:

Victimisation can be inferred if an action which is of detriment to an employee occurs after that employee makes a complaint on a number of topics related to their work. This is regardless of the validity of such a complaint. When an employee makes a complaint, an employer must take all steps to ensure they are treated consistently with how they were prior to doing so.

The full case is here:
https://www.workplacerelations.ie/en/cases/2023/september/adj-00037437.html