Question
Is it standard practice that performance-related bonuses are deducted pro-rata while an employee is on maternity leave?
This is not written in our maternity or paternity leave policy but it was communicated to me verbally by company HR. Male employees who take two weeks’ paternity leave do not have their bonus deducted pro-rata.
Also, If there are promotions taking place on my team while I am on maternity leave, should I be given the opportunity to apply?
Answer
Although there is no law specifically relating to bonuses and maternity leave, the principle of maternity protection legislation is that employees should be treated as if they were at work, according to independent HR consultant and workplace investigator Michelle Halloran, of Halloran HR Resolutions.
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Rules surrounding any performance-related bonus scheme should be clear and transparent, she says, and while a pro-rata payment for those on maternity leave is not illegal, the same rules not applying to male counterparts on paternity leave would certainly raise some eyebrows.
“There’s a particular problem there if they’re treating men on paternity leave in a different way to women on maternity leave,” she says, adding: “It’s not surprising, sadly.
“It has happened and I know it’s happened so I’m not surprised at the question but the answer is no because you’re essentially discriminating against a woman because she’s pregnant,” she says.
In Halloran’s opinion, those on maternity leave should receive a full performance-related bonus, taking their contribution to work before taking leave, alongside the general average of their team, into account.
“It has kind of evolved – there was a time where it was common practice to deduct the bonus but given the standards we have to adhere to now, I don’t think that’s a flyer, and particularly not if they’re treating men on paternity leave differently,” she says.
Separately, employees must be informed of any internal promotion opportunities, she says, adding that any lack of notification of such would be “completely outrageous”.
She notes one high-profile example from 2017 in which Diane Byrne, an army captain who was excluded from a promotions process for the position of commandant due to being on maternity leave, was awarded €824,794 in damages by a High Court judge.
“All of that stemmed from them not telling her while she was on maternity leave about promotion opportunities, so it’s completely unacceptable,” she says, adding that employees on maternity leave must be kept up to date with “essential communications”.
Any employee on maternity leave who receives no notification of an internal promotion opportunity could lodge a written grievance with HR, while the Workplace Relations Commission is another avenue if they remain dissatisfied, she says.
“It seems very clear from the reader’s questions that the management’s understanding of maternity protection rights in her organisation is very poor, ill-informed and actually quite shocking to be frank,” says Damien McCarthy, founder and chief executive of consultancy firm HR Buddy.
Although there may be no legal issue in not paying a performance-related bonus in this case, the payment made to those on paternity leave could bring about a possible question of discrimination, and could be open to legal challenge, he says.
Although it is important to note that neither maternity nor paternity leave carry a legal right to top-up pay or bonus pay from the employer, “this sounds like a classic case of an employer causing upset and confusion because their maternity and parental leave policies are not clear or making sense,” he says.
He reiterates that every employee on maternity leave should be treated as if they are in employment and should not suffer any negative consequences as a result, describing any lack of notification regarding a promotion as “completely illegal”.
Previous instances of this type of discrimination have seen successful cases taken against organisations, as it is an “outright breach of legislation under the Maternity Protections Act”, he says.
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