Maternity Protection Bill must be amended to avoid discrimination

Concerns have been raised that the Maternity Protection Bill may undermine the very principles of fairness and equality it aims to protect.

The Maternity Protection Bill 2024, introduced in the Seanad last week, marks a significant step in supporting the needs of mothers with serious health conditions during maternity leave.

Ireland is one of the first countries to introduce such legislation. Specifically, the bill seeks to support mothers by allowing the postponement of maternity leave in cases where a mother becomes seriously ill.

Concerns have been raised that the bill may undermine the very principles of fairness and equality it aims to protect. It is important that the bill works in practice for both those it seeks to support and the employers who are committed to supporting them.

Simply put, this is too important not to get right.

At the heart of the concern are the Employment Equality Acts, which explicitly prohibit discrimination based on disability, including distinctions between individuals with different disabilities.

As drafted, the bill could lead to a situation where employees with certain disabilities are treated less favourably than others. As such, it may unintentionally create disparities between different types of disabilities.

The bill defines a “serious health condition” in a way that could be interpreted as discriminating against employees with certain mental health conditions over those with physical health conditions.

The bill provides that a mental health condition must require inpatient hospital treatment to allow for maternity leave postponement, while an employee with a serious physical condition receiving outpatient care can still postpone her maternity leave. This requirement risks discriminating against women with serious mental health conditions treated as outpatients.

Both conditions are defined as disabilities under the Employment Equality Acts but under the current draft bill they would be treated differently, potentially in breach of employment equality legislation.

This creates an unnecessary and unwelcome distinction between two individuals who, despite having different types of health challenges, are equally impacted with respect to their ability to use maternity leave for its intended purpose.

One solution is to link the serious health condition of an employee to the necessity to postpone a period of maternity leave. The focus should be on whether the health condition — physical or mental — necessitates the postponement of maternity leave.

This approach would align the bill with other employment legislation, such as sick leave and parental leave laws. The Parental Leave Acts permit postponement of parental leave where an employee becomes ill and is, therefore, unable to care for their child.

Ibec believes that adding a similar provision to the bill, specifically addressing the postponement of leave due to an employee’s inability to use it for its intended purpose, would create a fairer system.

Such an amendment would help to ensure that all employees with serious health conditions, regardless of the type of treatment they are receiving, are treated equally. 

It would also protect employers from discrimination claims when they have acted in good faith and in accordance with their obligations under the bill.

Another crucial point is the suggestion that the decision to postpone maternity leave should not rest solely with the employer. Instead, this responsibility should lie with the Department of Social Protection, ensuring a standardised and impartial approach to these decisions.

The department already plays a key role in adjudicating eligibility for other forms of leave, such as carer’s leave and illness benefit. Extending its remit to maternity leave postponement would be a logical and practical step.

Centralising the decision-making process would relieve employers of both navigating the complexities of medical certification and handling sensitive personal data.

This would also ensure greater consistency in the application of the law, protecting both the employee’s privacy and the employer from inadvertently being exposed to discrimination claims.

Supporting women who face serious health challenges during maternity leave is crucial in a fair and compassionate society. 

To ensure fairness and equality, this bill must avoid creating discrimination contrary to existing employment equality legislation.

With the right amendments, the Maternity Protection Bill can achieve its intended purpose without unintended consequences —protecting the rights of employees and supporting businesses in doing the right thing.

• Maeve McElwee is executive director of employer relations with Ibec.