Joshua Selfridge v BK Groundworks (UD 1481/2009)

Legislation: Unfair Dismissals Acts, 1997 TO 2007 (the “Acts”)
Jurisdictions/Subject Matter: Paternity Leave

A decision in the above case was recently delivered by the Employment Appeals Tribunal. We asked David Fagan to set out details of the case and review legal entitlements around paternity leave.


Facts

This case came before the Tribunal as an appeal against a recommendation of the Rights Commissioner. The appellant/employee represented himself and no appearance or representation was made on behalf of the respondent employer.

The employee started working for the employer in September 2000. In 2008, the employee’s wife fell pregnant and he submitted a request to take 2 or 3 days off when the baby was born. The employer said this would not be a problem.

The employee was in the middle of a job when he got a call to say his wife had gone into labour. The employee was asked to finish what he was doing and then head off.

The employee phoned his employer the following morning to let him know that the baby had been born. The employer asked if he was coming into work and the employee reminded his employer that they agreed he could take 2 or 3 days off after the birth.

However, the employee attended a pre-arranged training course the day after the birth and his employer again asked him if he would be back into work the next day. The employee once again reminded the employer of their agreement. The employer replied by telling him that if he did not come to work the following day, he should not come back at all.


Determination

The Tribunal was satisfied that the employer was on notice of the hearing. As the employer failed to attend the hearing, the employee’s evidence was uncontested and the employer failed to discharge the onus placed upon it to establish that the dismissal was not unfair. The Tribunal, in applying Section 6(6) of the Unfair Dismissals Act 1977, deemed the dismissal unfair. The recommendation of the Rights Commissioner was varied and the employee was awarded €30,600 under the Acts.


Legal Review

Irish employment law does not recognise paternity leave. Employers are not obliged to give male employees any time off (paid or unpaid) following the birth of a child. The option to take annual leave is open to new fathers, at the discretion of the employer. However, unlike the present case few employers would have difficulty granting such leave.

Some employers, such as many sectors of the civil service, do provide for a period of paid leave for male employees following the birth or adoption of a child. Fathers employed by the civil service are generally entitled to special (paternal) leave of three days with pay, in respect of children born on or after 1 January 2000 or for children adopted after 1 January 2000.

In the private sector, such arrangements relating to paid paternity leave are the result of negotiation and agreement reached between the employer and employee. These arrangements are not required by statute so if an employer agrees to give paternity leave for a specified period (either with or without pay), it is entirely at the employers discretion.

In tragic circumstances where the mother delivers a living child but dies within 24 weeks of the birth, the father may be entitled to a period of leave, the extent of which depends on the actual date of the mother’s death. Where a father qualifies for leave under these circumstances, he also has an optional right to the additional maternity leave. This right exists under Section 16 of the Maternity Act 1994 (as amended).

While male employees are not legally entitled to either paid or unpaid paternity leave, they may be entitled to parental leave. Parental leave entitles both parents who qualify to take a period of up to 14 weeks' unpaid leave from employment in respect of children up to eight years of age.