Is an employee while on maternity leave entitled to be paid ?.
The Maternity Protection Acts 1994 – 2004 provide the rules regarding certain employees entitlement to maternity leave from work.
This Act does not cover, however, an entitlement to paid salary while on maternity leave. There may be provision for paid leave in the employees Employment Contract, and many employers do pay salary for a proportion of the leave period.
Some employers include paid leave as a condition of the workplace which is detailed in the Company Handbook. The Company Handbook can state that pregnant employees are are entitled to ‘paid’ maternity leave, if certain conditions are met.
A condition in the Company Handbook could be that the employee has reached 4 years of service with the employer, for example.
What can an employee do who considers that an employer has not upheld it’s obligation regarding paid leave ?.
There are a number of legal options available to the employee, but in this post, we will just discuss one which is constructive dismissal.
This is defined by S.1 of the Unfair Dismissal Act as
‘’The termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer’’.
If an employer fails to pay an employee during the maternity leave which is provided for by the employment Contract or Company Handbook, an employee can commence a legal action that she was unfairly dismissal by reason of constructive dismissal, because her employer refused to pay the maternity leave.
She is entitled to claim the employer’s failure to pay the salary amounted to a beach of contract which demonstrated the employer no longer intended to be adhere to the contract terms between the parties.
If an employee finds themselves in this position, it is important to firstly follow Grievance Procedures and exhaust each workplace procedure to try and internally resolve the dispute before resigning, and considering legal action.
Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute. Legal advice should be sought from a solicitor prior to relying on anything in this article.
Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.