Catherine Murphy (Kildare North, Social Democrats)
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289. To ask the Minister for Public Expenditure and Reform if he is satisfied that the pregnancy-related aspect of the sick leave scheme is being consistently applied for public servants (details supplied); and the steps a public servant can take to enforce compliance in cases in which they are being denied their entitlement. [54023/21]

Michael McGrath (Cork South Central, Fianna Fail)
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The legal basis and Ministerial power for the making of regulations for public service sick leave is founded in the Public Service Management (Recruitment and Appointments) (Amendment) Act of 2013 (No. 47 of 2013).

The responsibility for the application and implementation of those regulations, in this case S.I. No. 124/2014 - Public Service Management (Sick Leave) Regulations 2014 and SI 384/2015 Public Service Management (Sick Leave) (Amendment) Regulations 2015, lies with each public service sector employer. When considering the process of assessing access to paid sick leave the regulations, as laid out in SI 124/2014, must be viewed as interconnected rather than individual regulations in isolation.

My department supports this implementation across the public service by providing information and guidance to sectors on policy and regulatory issues that may arise.

Any public servant can approach their employer in relation to their entitlements under the Public Service Sick Leave Scheme including entitlements in relation to pregnancy related sick leave.

The need to protect women during pregnancy and ensure that they are not discriminated against is reflected in the design of the Public Service Sick Leave Scheme. These protections are set out in Appendix 1, set out below.

In summary these protections are:

The following extra protections are afforded to a female worker in respect of pregnancy related illnesses which would not apply if she or a male colleague were absent for a non- pregnancy related illness:

(i) An employee who is absent for a pregnancy related illness will receive a minimum of half pay during the pregnancy related illness, regardless of whether she has exhausted her ordinary entitlement to paid sick leave. This means that a female employee will not be taken off pay while on pregnancy related sick leave.

(ii) If a period of sick leave occurs subsequent to the pregnancy, the sick leave pay calculated at the half rate which the employee received during the pregnancy related illness will be discounted for the purpose of calculating entitlement to ordinary sick leave after the pregnancy, subject to the overall sick leave limits.

(iii) The Critical Illness Protocol, which allows for an increase of the upper limits for entitlement to sick leave at full or half pay provides specifically for pregnancy-related illness. Where a pregnancy related illness is serious it will also be covered by the CIP. One of the criteria for awarding of CIP more generally is 2 consecutive weeks of hospitalisation, however, this requirement is reduced to 2 days for pregnancy related illness.

In these ways, the Public Service Management Sick Leave recognise the distinct position of the pregnant worker and make provision for the protection of the health and welfare of such workers. The Regulations implement the principles of European law in relation to non-discrimination against pregnant workers.

Appendix 1

Sick leave during pregnancy

Relevant regulations:

1. S.I. No. 124/2014 - Public Service Management (Sick Leave) Regulations 2014.

1. www.irishstatutebook.ie/eli/2014/si/124/made/en/print

2. S.I. No. 384/2015 - Public Service Management (Sick Leave) (Amendment) Regulations 2015.

www.irishstatutebook.ie/eli/2015/si/384/made/en/print

Pregnancy related sick leave is treated differently to other types of sick leave and provides extra protections in respect of a pregnancy related illnesses. This is provided for in the Public Service Sick Leave regulations, specifically regulations 19 and 20 (see below). The employee must be medically certified as unfit for work due to a pregnancy related illness.

Regulation 19 is intended to deal with a situation where an individual is absent because of a pregnancy-related illness and has exhausted the limits for sick leave on half pay. In such a case, Regulation 19 provides that she will have access to an extended period of sick pay at the half rate for the duration of her pregnancy-related illness.

It also provides that the extended period of sick pay at the half rate will not be used in calculating how much sick leave she has taken i.e. it will not be reckoned in calculating her sick leave record. If the employee has a certified pregnancy related illness they can access sick leave in the normal way and will have the same allowance as normal.

If the employee exhausts all their sick leave on full and half pay before going on maternity leave they may get a special extension of paid sick leave at half pay. This extended period of certified pregnancy related sick leave at half pay is not counted on the sick leave record. Therefore, when on certified pregnancy related sick leave a woman will never receive less than half pay.

Regulation 20provides that a woman who has exhausted her access to paid sick leave due to pregnancy-related sick leave in the previous 4 years may have access to additional non-pregnancy-related sick leave at the half rate of pay. However the number of additional days allowed is limited under the following conditions:

- They will be the equivalent number of days taken on pregnancy-related sick leave in the 4 years;

- They must not exceed normal sick leave limits (i.e. 183 days/365 for CIP) for non-pregnancy-related sick leave (when counted with other non-pregnancy-related sick leave in the previous 4 years).

Sick leave post maternity leave

After maternity leave, if an individual has gone over normal paid sick leave/CIP thresholds there is access, at half pay, to the equivalent number of days taken on pregnancy related sick leave subject to the four year sick leave threshold.

This does not include the “extended” period of certified pregnancy related sick leave at half pay as this is not counted on your sick leave record.

Once Maternity Leave has ended any further sick leave will not be recorded as pregnancy related sick leave. Absences that occur after maternity leave has concluded are generally treated under regular sick leave protocols and are subject to the appropriate thresholds.