Summary of Statutory Leave Entitlements in Ireland-a Quick and Easy Guide

parental-leave-ireland

Are you confused about statutory leave in Ireland?

I don’t blame you-it can be very confusing.

Here is a quick and easy guide to statutory leave entitlements in Ireland. I hope you find it helpful. (Please read this disclaimer, though).

Annual Leave

Full time employee

4 working weeks where employee works in excess of 1,365 hours

Part time employee

8% of the hours worked in a leave year or

1/3 of a working week for each month in which the employee worked in excess of 117 hours

Relevant legislation: Organisation of Working Time Act, 1997.

Read also: How to calculate holiday entitlements

 

Public Holidays

There are 9 public holidays in Ireland.

The employee is entitled to a paid day off on the holiday, or a paid day off that month, or an extra day’s annual leave, or an extra day’s pay.

Relevant legislation: Organisation of Working Time Act, 1997.

 

Maternity Leave

Female employee is entitled to

  • 26 weeks’ unpaid maternity leave (may qualify for maternity benefit)
  • 16 weeks’ additional maternity leave (no maternity benefit)

Note: the contract of employment may provide for pay during maternity leave, but there is no legal obligation on the employer otherwise.

  • Reasonable time off for medical visits connected with pregnancy

Relevant legislation: Maternity Leave Act, 1994 and Maternity Protection (Amendment) Act, 2004.

Read: Maternity Leave in Ireland-what you need to know

 

Adoptive Leave

24 consecutive weeks’ unpaid leave for female, and additional 16 consecutive weeks unpaid.

Relevant legislation: Adoptive Leave Acts, 1995-2005

Read also: Carers Leave, Force Majeure Leave, Parental Leave and Adoptive Leave in Ireland

 

Carer’s Leave

13-104 weeks if continuously employed by that employer for 12 months.

Relevant legislation: Carer’s Leave Act, 2001.

Read also: Carers Leave, Force Majeure Leave, Parental Leave and Adoptive Leave in Ireland

 

Parental Leave

18 weeks unpaid leave for each child under the age of 8 (child with long term illness under 16 years). There is no social welfare benefit like maternity benefit.

Read also: New Parental Leave Law in Ireland

 

Paternity Leave

2 weeks’ paternity leave for fathers. This will be paid at a rate of €230 per week and will be based on the same prsi requirements as maternity leave.

 

Force Majeure Leave

3 days in any 12-month period or 5 days in a 36-month period. Force Majeure leave is paid leave.

Read also: Carers Leave, Force Majeure Leave, Parental Leave and Adoptive Leave in Ireland

Parental, Carers, Maternity and Adoptive Leave Claims to the Workplace Relations Commission (WRC)

parental-leave-ireland

There are a number of claims you can bring to the Workplace Relations Commission (WRC) in respect of adoptive leave, carer’s leave, parental leave, force majeure leave, and maternity leave.

Adoptive Leave

  1. Have you been granted adoptive leave entitlements?

Section 6 of the Adoptive Leave Act, 1995 entitles employed adoptive mothers or sole male adopters to a minimum period of adoptive leave of 24 weeks.

Section 9 of the Adoptive Leave Act, 1995 entitles an adopting father to adoptive leave where the adopting mother has died.

  1. Have you been granted additional adoptive leave rights?

Section 8 of the Adoptive Leave Act, 1995 entitles you are also entitled to take an additional 16 weeks’ unpaid additional leave after your adoptive leave end

Section 10 of the Adoptive Leave Act, 1995 entitles the adopting father to additional adoptive leave where the adopting mother has died

 

Carer’s Leave

  1. Have you been granted your carer’s leave?

An employee with 12 months’ continuous service is entitled to carer’s leave of 104 weeks to provide full-time care and attention to a relevant person.

An employee shall not be entitled to carer’s leave during the same period in which another employee is absent from employment on carer’s leave for the purpose of providing full-time care and attention to the same relevant person.

Section 6 of Carer’s Leave Act, 2001.

  1. Have you, on the expiry of your carer’s leave, been allowed to return to work or been offered a suitable alternative employment
  • An employee’s contract on return to work must not be less favourable than that under which they were employed before the absence on Carer’s Leave

Section 14 Carer’s Leave Act, 2001

  • An employee is entitled to return to work but it is not reasonably practicable for the employer to permit the employee to return to work the employee shall be entitled to be offered by their employer a suitable alternative employment under new contact of employment

Section 15 Carer’s Leave Act, 2001

 

Parental Leave

  1. Did you receive your entitlement to parental leave?

            An employee who is the natural, adopting or adoptive parent of a child who has complete on year’s continuous employment is entitle to unpaid parental leave of 14 working weeks.

Section 6 Parental Leave Act, 1998

Note: this entitlement has changed to 18 working weeks-read the new parental leave entitlements in Ireland.

Section 7 Parental Leave Act, 1998 sets out the manner in which the leave can be taken.

         Force Majeure Leave

Where an employee shall be entitled to leave with pay from his employment for urgent family reasons (injury, illness etc)

Maximum force majeure leave which may be availed is 3 days in 12 consecutive months or 5 days in 36 consecutive months

Section 13 Parental Leave act, 1998.

  1. On the expiry of your parental leave have you been allowed to return to work or were offered suitable alternative employment?

An employee’s contract on return to work must not be less favourable than under which they were employed before the absence on parental leave

Section 15 Parental Leave Act, 1998.

Where it is not reasonably practicable for the employer to permit the employee to return to work the employee shall be entitled to be offered by the employer suitable alternative employment under a new contract of employment

Section 16 Parental Leave Act, 1998

Maternity Leave

  1. Did you receive your entitlement to maternity leave?
  • Pregnant employees are entitled to 26 weeks’ maternity leave
  • If the baby’s late birth means that an employee was less than 4 weeks’ maternity leave remaining after the week in which her baby was born she may extend her maternity leave to ensure that she has a full 4 weeks off following the week of the birth
  • An employee who has taken her maternity leave may be entitled to additional maternity leave of up to 16 weeks

Section 8 Maternity Protection Act, 1994

How to Manage Sickness Related Absence in Your Workplace, and Reduce Costly and Time Sucking Claims

sickness-policy

Are you an employer?

Have you a member of staff absent from work due to illness?

Do you worry about how to properly manage employees’ absence?

Are you concerned that you’re not sure how to manage sickness related absence?

Many of my clients were in the same boat.

But they’re not worried anymore.

Do you want to know what they’ve done to get some peace of mind in this area?

And to do the same?

Draw up a sick leave absence management policy and procedure

A sick leave absence management policy and procedure is a bit of a mouthful, isn’t it?

Basically, you want to have a policy in place which sets out clearly what procedure is to be adopted when an employee is absent through illness.

This allows you and employees know what exactly is going to happen, and the procedure to be followed.

It’s fair because it will apply to all employees.

And it provides much appreciated clarity for everyone.

This policy should make clear:

  1. whether there is a sick pay scheme
  2. what the notification and certification requirements are when an employee is out sick
  3. that the employee can be required to attend a doctor nominated by the employer for medical assessment.

Medical certs-when, and how frequently, are they required?

You can decide how soon you require a medical certificate from an employee.

What follows is not set in stone, and you can adapt it to suit your circumstances. But, if you do follow these steps, or similar ones, you won’t go too far wrong.

So, on the 1st day of illness, the employee should be required to notify his line manager as soon as possible before scheduled commencement of duty.

He should also be expected to report the general nature of  the illness and expected return to work date.

On the 3rd working day, he must forward a medical cert. to you.

You can choose whether it is the 3rd working day or 4th working day when the cert is required-it’s your decision-but make it clear in your policy document, and ensure that all employees have received a copy of your sick leave absence management policy.

The duration of the medical certs. should also be specified, with weekly certs being submitted initially.

Requiring weekly medical certs for short term absence and accepting monthly certs for long term absences is widespread, and sensible, practice.

It is helpful, also, to define in your policy what is short term absence, what’s long term, and what is unauthorised absence.

Generally, short term absence would be 4 weeks or less, while long term absence would be an absence of more than 4 weeks.

Unauthorised absence is an absence which is not supported by a doctor’s note/cert, or not authorised by management, or not communicated using the correct procedure.

Unauthorised absences would be addressed through your workplace disciplinary procedure.

You do have one, don’t you?

Regular contact should be maintained with the employee to ascertain how he is, and the likely return to work  date.

This is also useful to maintain the employee’s’ connection to the workplace, but should be on a needs basis-for example to ensure the medical certs are being submitted- and not too intrusive or pushy.

When the absence is for 3 or 4 months, it may be time to take a closer look at the absence, and the likelihood of a return to work at all.

An appointment with the company doctor or occupational physician may be arranged at this stage, at the expense of the employer.

It may be time to invite the employee in for a chat, and a discussion including letting the employee know that his employment is under review due to the absence and the question of capacity to do the job will have to be addressed.

She should be able to give an assessment of the likelihood of a return to work, when, and whether there is anything you, as an employer, should be doing to facilitate a return to work.

The doctor or occupational physician may suggest a phased or temporary return to work. This can be monitored and re-assessed after 4-6 weeks.

Before any decision is made, though, about termination of the contract on the grounds of capability, the employee should be invited to make a submission to influence the decision, and fair procedures must be followed.

The medical report should support a decision to terminate by indicating that there is no reasonable prospect of a return to work within a reasonable timeframe.

Unfair Dismissals Act, 1977, section 6(4):

 

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

 

 

Do remember, though, that the decision to terminate the employment is yours to make, and you cannot hide behind the medical assessment and blame the doctor or try to pin the responsibility on him.

Hopefully, there will be no need to terminate and the employee can return to work.

Return to work follow up

When the employee returns to work, you should:

  1. acknowledge the return to work
  2. request staff to submit a “fit to resume” doctor’s note, by the resumption date, following long term sickness absence. Unless a “fit to resume” note is furnished, employee to be given up to a week to produce one and/or not allowed to return to work without one
  3. try to facilitate a partial return to work where the employee requests it.

In any event, you should interview all employees, regardless of how long they have been out or their illness, prior to their return to work.

Role of occupational health provider/company doctor

Your sickness absence management policy needs to make clear that an employee can be requested to attend your doctor or medical advisor for medical examination and that you, as employer, are entitled to receive details of such medical assessments.

Your occupational health provider/doctor should be able to

  • carry out pre-employment medical assessments;
  • provide advice on health related matters which affect employees’ work;
  • advise about employees fitness to undertake his full range of duties and to make recommendations on measures to assist his return to work;
  • advise on employee’s fitness to undertake modified or alternative duties;
  • advise you about areas of support for health related problems which may be affecting employment.

Quit worrying about sickness related absence

Stop worrying unduly about employees being out sick.

Get a policy drawn up to manage absences, enforce it consistently and fairly, and make sure all employees have been given a copy.

You will reduce your stress, increase your peace of mind, and significantly diminish employment related claims-for stress and unfair dismissal- against you.

New Parental Leave Law in Ireland-Family Leave Changes

parental-leave-ireland

Budget 2016 saw new parental leave entitlements being announced.

Statutory paternity leave of two weeks was announced and is to take effect in September 2016. This will be paid at a rate of €230 per week and will be based on the same prsi requirements as maternity leave.

Up to now most men would have to take unpaid leave-with the employer’s agreement-or holidays.

Parental leave has been available to men and women since 1998 but the uptake amongst men is as low as 5% because it is unpaid.

Employers should consider drawing up paternity leave policies for the new regime to set out how the employee can apply, and other details.

Prior to this change, the entitlement to parental leave in Ireland changed on 8th March, 2013 when the EU Parental Leave Directive 2010/18/EU was transposed into Irish law.

The Irish Government indicated prior to  that they would be publishing a new Family Law Bill which will bring all existing family leave legislation into one Act.

This new Family Law Bill will therefore cover carer’s leave, parental leave, maternity leave, and adoptive leave.

Parental Leave Changes March 2013

Here is a summary of the changes in relation to parental leave when EU Parental Leave Directive 2010/18/EU is transposed into Irish law on 8th March, 2013.

UPDATE 8th March, 2013

Statutory Instrument no. 81 of 2013, European Union (Parental Leave) Regulations 2013, transpose EU directive 2010/18 EU into Irish law with effect from 8th March, 2013.

Click on the link above to read the regulations.

Summary of EU Parental Leave Directive 2010/18/EU

Workers are entitled to parental leave on the birth or adoption of a child. Such leave may be taken until the child has reached an age determined by national law and/or collective agreements, but before the age of eight.

This Directive applies equally to all workers, men and women, irrespective of their type of employment contract (open-ended, fixed-term, part-time or temporary).

Parental leave shall be granted now for up to 18 weeks.(See Parental Leave Regulations, 2013 above)

In principle, workers should be able to take all of their leave. It should therefore not be transferable from one parent to the other. However, such transfers may be authorised on condition that each parent retains at least one of the four months of leave.

Taking of leave

The conditions of access to leave and adaptability of leave shall be defined by national law and/or collective agreements. For example, European Union (EU) States and/or social partners may:

• adapt leave to the needs of parents and employers, by granting leave on a full-time or part-time basis, in a piecemeal way or in the form of a time-credit system;

• make this right subject to a length of service qualification which shall not exceed one year. Where appropriate, that period shall be calculated taking account of all of the successive fixed-term contracts concluded with the same employer;

• authorise the postponement of leave by the employer, for justifiable reasons related to the organisation;

• authorise special arrangements to ensure the proper operation of small undertakings.

Workers wishing to take parental leave must give notice to the employer. The period of notice shall be specified in each EU country taking into account the interests of workers and of employers.

Each EU country shall also be encouraged to define additional measures and/or the specific conditions for the taking of leave by adoptive parents and parents of children with a disability or a long-term illness.

Taking Parental Leave In Ireland

The 18 weeks per child may be taken in one continuous period or in 2 separate blocks of a minimum of 6 weeks. There must be a gap of at least 10 weeks between the 2 periods of parental leave per child. However, if your employer agrees you can separate your leave into periods of days or even hours.

Section 11 of the Parental Leave Act, 1998 allows the employer to postpone the leave for “substantial reasons” (“would have a substantial adverse effect on the operation of his or her business, profession or occupation”).

Transfer of leave between parents:

Where 2 or more parents in respect of a child are entitled to parental leave in respect of the child and the parents are each employed by the same employer, then each relevant parent shall, subject to the consent of the employer concerned, be entitled to transfer part, not exceeding 14 working weeks, of the period of his or her parental leave to any other relevant parent in respect of the child.

Return to work and non-discrimination

After taking parental leave, workers shall have the right to return to the same job. If that is not possible, the employer must offer them an equivalent or similar job consistent with their employment contract or employment relationship.

In addition, rights acquired or in the process of being acquired by the worker on the date on which parental leave starts:

• shall be maintained as they stand until the end of the leave;

• shall apply at the end of the leave, as shall all changes arising from national law, collective agreements and/or practice.

Similarly, workers shall be protected against less favourable treatment or dismissal on the grounds of an application for, or the taking of, parental leave.

All matters regarding social security and income in relation to parental leave are for determination by EU States and/or national social partners. The Agreement does not therefore contain any stipulations concerning the payment of salary or compensation during parental leave.

Finally, on their return from leave, workers must be able to request changes to their working hours and/or patterns for a set period of time. Employers shall consider and respond to such requests, taking into account both employers’ and workers’ needs.

Leave on grounds of force majeure

Workers may also request leave on grounds of force majeure for family reasons.

Such leave may be requested in particular in cases of sickness or accident making the immediate presence of the worker within the family indispensable.

Section 13 of the Parental Leave act, 1998 states:

13.—(1) An employee shall be entitled to leave with pay from his or her employment, to be known and referred to in this Act as “force majeure leave”, where, for urgent family reasons, owing to an injury to or the illness of a person specified in subsection (2), the immediate presence of the employee at the place where the person is, whether at his or her home or elsewhere, is indispensable.
(2) The persons referred to in subsection (1) are—
(a) a person of whom the employee is the parent or adoptive parent,
(b) the spouse of the employee or a person with whom the employee is living as husband or wife,
(c) a person to whom the employee is in loco parentis,
(d) a brother or sister of the employee,
(e) a parent or grandparent of the employee, and
(f) persons of such other (if any) class or classes as may be prescribed.
(3) When an employee takes force majeure leave, he or she shall, as soon as reasonably practicable thereafter, by notice in the prescribed form given to his or her employer, confirm that he or she has taken such leave and the notice shall specify the dates on which it was taken and contain a statement of the facts entitling the employee to force majeure leave.
(4) Force majeure leave shall consist of one or more days on which, but for the leave, the employee would be working in the employment concerned but shall not exceed 3 days in any period of 12 consecutive months or 5 days in any period of 36 consecutive months.
(5) A day on which an employee is absent from work on force majeure leave in an employment for part only of the period during which he or she is required to work in the employment on that day shall be deemed, for the purposes of subsection (4), to be one day of force majeureleave.

Even though force majeure leave is included in the Parental Leave Act, 1988 it is paid leave while parental leave is unpaid.

Context

This Directive introduces the revised Framework Agreement concluded by the European social partners on 18 June 2009. This Agreement follows the Framework Agreement of 14 December 1995 on parental leave.

2010/18/EU

Legislation

Parental leave Act, 1998

Parental Leave (Amendment) Act, 2006

Statutory Instrument no. 81 of 2013, European Union (Parental Leave) Regulations 2013

 Redress

Breach of the Parental Leave Act, 1998 can see a Rights Commissioner awarding up to 20 weeks remuneration in compensation to the employee (Section 21 of the Parental Leave Act, 1998)

How To Calculate Holiday Entitlements | Calculating Holiday Pay in Ireland

holiday-entitlements

Calculating holiday entitlements can be a real pain.

And can lead to bad feeling and a sense of grievance if not done correctly.

How do you calculate holiday entitlements in Ireland?

Annual leave, like minimum rest periods for employees, is covered by the Organisation of Working Time Act, 1997 and is a statutory right of an employee.

The first thing to note about annual leave is that all employees are entitled to paid holidays/annual leave.

There is no qualification requirement and part time employees are also protected by the Protection of Employees (Part Time) Work act, 2001.

The best way to deal with holidays for part timers is to give them holidays on a pro-rata basis with their full time colleagues.

What is “working time”?

Working time is an important concept for the purpose of calculating holiday entitlements, rest breaks, etc and is defined in section 2 of the Organisation of Working Time Act, 1977 as

working time” means any time that the employee is—
(a) at his or her place of work or at his or her employer’s disposal, and
(b) carrying on or performing the activities or duties of his or her work,

Time spent on call or standby?

Time spent on call or standby is regarded as working time provided the worker is required to be physically present at a particular place, regardless of the time actually done.

The Organisation of Working Time Act, 1977 does not apply to Gardai or members of the defence forces.

In addition, certain sections of  the Act do not apply to regulated employees, employees covered by collective agreements approved by the Labour Court, workers covered by registered employment agreements or employment regulation orders, workers working in exceptional circumstances or an emergency, workers at sea, doctors in training, a person who is employed by a relative in certain circumstances, a person who determines his/her own working time, shift workers and those doing “spread work” (periods of work spread out over the day).

How to Calculate Holiday Entitlements

The relevant section of the Organisation of Working Time Act, 1997 is section 19. It states:

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—
(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),
(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or
(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):
Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.
(2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave.
(3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.
(4) Notwithstanding subsection (2) or any other provision of this Act but without prejudice to the employee’s entitlements under subsection (1), the reference in subsection (3) to an unbroken period of 2 weeks includes a reference to such a period that includes one or more public holidays or days on which the employee concerned is ill.
(5) An employee shall, for the purposes of subsection (1), be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave.
(6) References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week.

Source: www.irishstatutebook.ie

As you can see there are a number of different methods of calculation. However you must use the one which gives the employee the biggest entitlement.

In summary therefore all employees are entitled to:

  • 4 working weeks where at least 1365 hours have been worked in the leave year OR
  • One third of a working week where the employee works at least 117 hours in a calendar month OR
  • 8% of the hours worked in a leave year (subject to a maximum of 4 working weeks)

Note 1: the maximum entitlement is four of the employee’s normal working weeks and NOT twenty days; this can be significant because the “working week” itself is not defined in the Act and must be construed by reference to the number of days/hours encompassing a work cycle.

Note 2: pay must be paid in advance of the annual leave.

Note 3: periods of sick leave are not counted as hours worked but parental and maternity leave are. Periods of sick leave are now counted for the purpose of calculating holiday entitlements. Please read this article.

Examples

(a)    4 working weeks where the employee works at least 1,365 hours in the year

Sheila works a 39 hour, 5 day week.

She has worked 1400 hours at the end of September. As this exceeds 1,365 hours she is entitled to 4 weeks paid holidays.

Her normal working week is 5 days. She is entitled therefore to 20 days (4 weeks @ 5 days) paid annual leave.

(b)   One third of a working week per calendar month in excess of 117 hours

Michael works a four day week at 39 hours per week.  This is in excess of 117 hours per month (over 600 hours in fact).

So Michael accumulates annual leave at a rate of 1.34 (one and one third) days per month worked, that is, one third of four days = 1.34.

In a full year (12 months) Michael will accumulate 1.34 * 12 = 16.08 days annual leave.

( c) 8% of the hours worked

Jonathan works for 8 weeks and did 200 hours over the 8 weeks and then quit.

Jonathan is entitled to 8% of hours worked, that is, 16 hours of paid leave which he is entitled to receive when leaving the employment.

NOTE: if more than one of these methods of calculation is applicable, the employer must use the method which gives the greatest entitlement.

How Much Holiday Pay?

If the employee is paid hourly or weekly or monthly, indeed any time based method, then she is entitled to a normal week’s wages before the leave commences and this includes any normal bonus or allowance but excludes overtime.

If the employee is paid a piece rate, the rate of holiday pay is the average weekly pay calculated over the 13 weeks prior to commencing leave.

How to Calculate Holiday Pay

Firstly, if the employee is paid by reference to a salary or a time rate, the amount due for one week of annual leave will be the amount paid to him/her for a normal working week prior to the commencement of holidays.

This payment includes any regular allowance and bonus but does not include overtime.

Secondly, if the employee is not paid by reference to a time rate but by reference to commission or a piece or productivity rate, then his/her holiday pay for one week of annual leave is calculated by reference to the average pay for that employee calculated over the 13 weeks immediately prior to taking leave.

What if the employee gets sick during annual leave?

If the employee provides a sick certificate then his leave should not be counted for the days of his certificate and the employees will be allowed carry over his leave, even where it takes him/her into another leave year.

Timing of leave

The employer can decide when annual leave can be taken, subject to certain requirements such as the requirements of the business and the requirements of the employee in respect of work/life/family balance.

By the same token it is the employer’s responsibility to see that the employee takes his/her full entitlement within the leave period.

Leave must be given and taken within the leave year, unless the employee consents to getting leave in the first six months of the following leave year.

Any leave not taken is forfeited unless the employer agrees to the leave being taken within 6 months of the end of the leave year.

An employee has no cause of action for leave untaken in previous years.

The leave year begins on the 1st of April according to the Act but the employer can stipulate a different time period.

20.(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—
(a) to the employer taking into account—
(i) the need for the employee to reconcile work and any family responsibilities,
(ii) the opportunities for rest and recreation available to the employee,
(b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and
(c) to the leave being granted within the leave year to which it relates or, with the consent of the employee, within the 6 months thereafter.
(2) The pay in respect of an employee’s annual leave shall—
(a) be paid to the employee in advance of his or her taking the leave,
(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and
(c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee’s remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.
(3) Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave.
(4) In this section “normal weekly rate” means the normal weekly rate of the employee concerned’s pay determined in accordance with regulations made by the Minister for the purposes of this section.

Section 20, Organisation of Working Time Act, 1997.

How much pay?

Annual leave is paid leave and the obligation is to pay the normal weekly rate of pay.

A statutory instrument, 475/1997 sets out in detail how to calculate payment which will depend on a number of factors and need to account for bonuses (may be included), allowances (may be included), and overtime (not included). (See above)

Losing the job?

The employee is entitled to compensation for any leave that they have not taken in the leave year.

23.—(1) Where—
(a) an employee ceases to be employed, and
(b) the whole or any portion of the annual leave in respect of the current leave year or, in case the cesser of employment occurs during the first half of that year, in respect of that year, the previous leave year or both those years, remains to be granted to the employee,
the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

Public Holidays

Public holidays in Ireland are set out in the act as follows:

1. Each of the following days shall, subject to the subsequent provisions of this Schedule, be a public holiday for the purposes of this Act:
(a) Christmas Day,
(b) St. Stephen’s Day,
(c) St. Patrick’s Day,
(d) Easter Monday, the first Monday in May, the first Monday in June and the first Monday in August,
(e) the last Monday in October,
(f) the 1st day of January,
(g) any other day or days prescribed for the purposes of this paragraph.
2. The Minister may by regulations vary paragraph 1 by substituting for any day referred to in that paragraph another day.
3. An employer may, for the purpose of fulfilling any relevant obligation imposed on him or her by this Act, treat as a public holiday, in lieu of a public holiday aforesaid, either—
(a) the Church holiday falling in the same year immediately before the public holiday, or
(b) the Church holiday falling in the same year immediately after the public holiday or, if the public holiday is a day which is a public holiday by virtue of paragraph 1 (b), the 6th day of January next following,
by giving to the employee concerned notice of his or her intention to do so not less than 14 days before the Church holiday (where that holiday is before the public holiday) or before the public holiday (where that holiday is before the Church holiday or, as the case may be, the said 6th day of January).
4. Each of the following days shall be a Church holiday for the purposes of paragraph 3:
(a) the 6th day of January, except when falling on a Sunday,
(b) Ascension Thursday,
(c) the Feast of Corpus Christi,
(d) the 15th day of August, except when falling on a Sunday,
(e) the 1st day of November, except when falling on a Sunday,
(f) the 8th day of December, except when falling on a Sunday,
(g) any other day or days prescribed for the purposes of this paragraph.

Public holidays confer public holiday benefits on employees and the employer has a choice of

  1. A paid day off on that day
  2. An additional day’s pay
  3. An additional day of annual leave
  4. A paid day off within a month of that day.

How much you are entitled to be paid will be roughly similar to the calculation of annual leave pay as set out in SI 475/1997, Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997.

Public Holiday Benefit Entitlements

Full-time workers have an immediate entitlement to benefit for the public holidays whilst part-time workers have entitlement to benefit when they have worked 40 hours in the previous 5 weeks.

So, when the employee works on the public holiday, they are entitled to their normal pay. But they are also entitled to a public holiday benefit. However this benefit may vary from one public holiday to another, depending on whether they would have been normally due to work or not.

If the business is closed on the public holiday, and the employee would normally have been due to work, they will be entitled to their normal day’s wages.

If the business is open and the employee works, then they are entitled to their normal day’s wages and, in addition, an additional day’s wages or paid time off.

If the business is open, but the employee does not work and normally doesn’t, then they will be entitled to one fifth of their normal weekly wages or a paid day off within a month or an extra day’s annual leave, as the employer decides.

Public Holiday Rate of  Pay

For an employee who is normally required to work on the day on which a public holiday falls

If the employee’s pay is calculated by reference to a time rate or salary, he is entitled to a day’s pay according to his normal daily hours prior to the holiday;

If the employee’s pay is calculated by reference to a piece rate or commission, he is entitled to the average daily pay calculated over the 13 weeks prior to the public holiday.

For an employee who is not normally required to work on the day on which the public holiday falls

If the employee’s pay is calculated by reference to a time rate or salary, he is entitled to pay equivalent to one fifth of the normal weekly hours last worked before the holiday;

If the employee’s pay is calculated by reference to a piece rate, he is entitled to one fifth of the average weekly pay calculated over 13 weeks prior to the public holiday.

Complaints

A claim may be brought in the first instance to the WRC (Workplace Relations Commission) (within 6 months of alleged breach, 12 months allowed in exceptional situations), and thereafter appealed to the Labour Court.

Section 27 deals with complaints to the Rights Commissioner and the sanctions which can be imposed which include:

(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:
(a) declare that the complaint was or, as the case may be, was not well founded,
(b) require the employer to comply with the relevant provision,
(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee’s employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

Record Keeping

Section 25 of the Act requires employers to maintain employee records of holidays and public holidays for a period of 3 years. Statutory Instrument 473/2001 contains the regulations concerning the records and forms that must be kept.

Terry Gorry & Co. Solicitors has prepared a spreadsheet to record hours worked which is based on these regulations and on the OWT1 form prescribed which you can download by clicking on the link. The requirement to complete our form or form OWT1 is only where the employer has no electronic clocking-in facilities.

Section 27 of the act allows an employee to complain about a breach of a “relevant provision” to a Rights Commissioner. (A relevant provision concerns rest periods and/or holiday entitlements).

A Rights Commissioner (or Labour Court on appeal) can

(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:
(a) declare that the complaint was or, as the case may be, was not well founded,
(b) require the employer to comply with the relevant provision,
(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee’s employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

Holiday and public holiday entitlements can also be claimed at an Employment Appeals Tribunal.