Monday, April 23, 2018
As published in the Sunday Business Post, April 22nd.
The recent announcement by HubSpot that it’s offering female employees in its Irish office the opportunity to have their eggs frozen as part of their benefits package is interesting, and novel.
Recent media coverage suggests the company decided to introduce the new benefit at the end of last year. Female employees aged 32 or over can avail of a financial contribution from the company in order to carry out the procedure. An employee contemplating the benefit obviously has the option of deferring motherhood to a future date.
This is perhaps one of the first occasions in which an Irish employer has offered a benefit of this kind to its staff. When we think of employment-related benefits, we tend to think of health insurance or death-in-service payments.
The HubSpot example, however, shows that employers are becoming increasingly creative in the packages they offer their staff.
According to coverage of the decision, this is commonplace in technology companies in the US and, to a lesser extent, in Britain. It’s new in Ireland.
Generally speaking, employment benefits are discretionary. Apart from certain exceptions, which are quite limited in scope, Irish employers aren’t under any obligation to provide fringe benefits at all.
Irish employees, by way of example, have no legal entitlement to sick pay, pension contributions, bonuses, company cars or payment during any period of special leave. This includes maternity, paternity, parental and adoptive leave, although employees with requisite PRSI contributions can avail of a payment from the state during these leave periods.
Naturally, in a competitive employment market, employers who offer enhanced packages may find favour among candidate employees. Offering health insurance is now the norm in Ireland, with private pensions following closely behind it.
At first glance, offering employees the option to have their eggs frozen might appear to be an unusual employer intervention in an employee’s private life. However, from an employment-law perspective at least, there’s nothing particularly alarming about it. HubSpot is merely offering its employees the option of availing of a financial benefit in their personal lives.
Legally speaking, it is no different to any other benefit and, presumably, the company has been careful to couch it in terms of being a discretionary benefit offered by the employer from time to time (in other words, the company is entitled to withdraw the benefit at some future point).
That is particularly important. Offering generous benefit packages can attract top-quality candidates, but an employer wants to be able to trim the sails during leaner times. Egg extraction and freezing can be a costly exercise running to tens of thousands of euro.
The reaction has not been uniformly positive. Critics maintain that the move incentivises women to work during their natural child-bearing years, rather than availing of Ireland’s comparatively generous maternity leave regime.
Presumably, opponents of schemes such as this would argue that it is placing the company’s need ahead of that of the individual by incentivising employees to remain in the workforce, and contribute to the company’s success, during their 20s and early 30s rather than having children at that time.
As always, there are arguments on both sides of the debate. However, clearly, the company’s decision vests the discretion in the employee concerned.
No doubt, HubSpot would argue that all it is doing is offering the opportunity to defer giving birth.
Importantly, it seems clear that an employee can’t be compelled to have their eggs frozen. As with any discretionary benefit, the decision to accept it or not is ultimately the employee’s alone.
Developments such as this clearly demonstrate that there will be a continued need for employment law to keep pace with developments in technology and science. Not for the first time, it makes clear that the working environment of the 2010s is vastly different to that of the past.