Maternity Leave in Irish Employment Law-What You Need to Know

maternity-leave-ireland

Maternity leave, and the entitlement to maternity leave, is provided for by the Maternity Protection Act, 1994 and the Maternity Protection (Amendment) Act, 2004.

Statutory Instrument 446/1994 (Safety, Health and Welfare at Work (Pregnant Employees) Regulations, 1994 and S.I. No. 51/2006 – Maternity Protection Act 1994 (Extension of Periods of Leave) Order 2006 are also highly relevant.

Unfortunately disputes about maternity leave can be common enough. For this reason it is strongly advisable that you as an employer have a maternity leave policy in the workplace.

Maternity Leave Entitlement

The minimum entitlement for a pregnant employee is for 26 consecutive weeks of leave.

The employee must inform her employer in writing of the intention to take leave (section 9 of Maternity Protection Act 1994) and must have a medical certificate confirming the expected date of “confinement”.

Maternity leave must commence not later than before the end of the expected week of “confinement” and will end no earlier than four weeks after the end of the expected week of confinement.

The legislation also provides for an extension of maternity leave if the baby is born later than expected and “additional leave” is also a possibility.(Section 12)

This additional maternity leave can be up to 16 weeks but is unpaid and must start immediately after the end of maternity leave. (Section 14)

Section 13 of the Act deals with unexpected early commencement of maternity leave and section 14 A inserted by the Maternity Protection (Amendment) Act, 2004  deals with

  1. sickness of the employee and
  2. hospitalisation of the child.

Payment of wages

There is no entitlement to be paid during maternity leave; however the employee was entitled to receive social welfare payments of 80% of her reckonable earnings for the 26 weeks of maternity leave (but not the additional leave). Some employers will make some payments to employees during maternity leave but this will depend on the industry and the employment contract.

The entitlement to receive 80% of reckonable earnings is no longer the case.

From 6th January, 2014 a standard rate of €230 per week maternity benefit is paid.

Other entitlements and obligations under the legislation and regulations include paid time off for ante-natal and post-natal care (section 15), breastfeeding breaks, and the obligation on the employer to carry out a risk assessment for pregnant women (even where there are no pregnant employees)(Safety, Health and Welfare at Work (Pregnant Employees) Regulations, 1994). (See also S.I. No. 18/1995 – Maternity Protection (Time Off For Ante-Natal and Post-Natal Care) Regulations, 1995)

Protective Leave

Maternity leave is protective leave and any termination notice by an employer when the employee is on protective leave is void. Protective leave includes maternity leave, additional maternity leave, fathers’ leave and health and safety leave. (section 21)

In addition an employee has a general right to return to work (section 26) to the position held before going on maternity leave, even if there was a transfer of undertaking in the meantime.

However this may not necessarily mean going back to the original job but does mean suitable alternative work must be provided (section 27).

To offer a contract in this situation it must be no less favourable in relation to terms and conditions previously enjoyed and the work required to be done must be suitable and appropriate to that employee.

It is important to note that an employee who is on maternity leave must notify her employer of her intention to return to work (section 28, Maternity Protection Act, 1994)

Unfair Dismissals

All dismissals connected with pregnancy are deemed to be unfair dismissals and this includes employees made redundant during maternity leave and who are not offered suitable alternative employment.

Section 23 states:

23.—Each of the following shall be void:
(a) any purported termination of an employee’s employment while the employee is absent from work on protective leave;
(b) any purported termination of an employee’s employment during a period of natal care absence;
(c) any notice of termination of an employee’s employment given while the employee is absent from work on protective leave and expiring subsequent to such a period of absence;
(d) any notice of termination of an employee’s employment given during a period of natal care absence and expiring subsequent to such a period;
(e) any purported suspension from an employee’s employment imposed while the employee is absent from work on protective leave, or during a period of natal care absence.

It is worth noting also that there is no service requirement (period of employment)  to bring this claim if connected with pregnancy or giving birth; ordinarily you need 12 months service to have the protection of unfair dismissal legislation.

Section 38 (1) provides that dismissals are automatically unfair if connected with pregnancy or giving birth.

Illness/sickness Related to Pregnancy

Employers cannot apply the normal provisions of their sick pay schemes when dealing with pregnancy related illnesses.

This has arisen as a result of a lot of decisions in the European Court of Justice.

The Equality Officer in McKenna v North Western Health Board [2006] followed the European jurisprudence. The Equality Officer held that her period of sickness during pregnancy and during her statutory maternity leave could not be used to calculate the amount of sick leave she had incurred and therefore the amount of sick pay she received, as the company operated a sick pay scheme.

Essentially this means that a woman with a pregnancy related illness may be compared with a sick man and treated as a sick man absent from work for a similar period would be treated.

Health and Safety

The Safety, Health and Welfare at Work Act, 2005 and the Safety, Health and Welfare at Work Regulations 2000, SI 218/2000, require employers to carry out risk assessments in respect of their employees.

The employer must move a pregnant employee to alternative work if a risk assessment shows unacceptable risks for the pregnant employee. If this is not feasible or alternative work is not available the employee must be granted health and safety leave and receive payment for the 1st 3 weeks of that leave. (See section 18 of the Maternity Protection Act, 1994)

Employers are not entitled to dismiss employees if they are unable to work during pregnancy, just after giving birth or while breastfeeding, if that inability to work arises for health and safety reasons.

Maternity Leave Disputes

Disputes can be dealt with by the Rights Commissioner in the first instance with appeals to the Employment Appeals Tribunal or the High Court on a point of law only.

Part V of the Act deals with the procedure for dealing with disputes surrounding maternity leave.

Notice

Employees must give at least 4 weeks written notice in respect of

  1. taking maternity leave
  2. returning to work
  3. taking additional maternity leave.

Carers Leave, Force Majeure Leave, Parental Leave and Adoptive Leave in Ireland

parental leave

The entitlements to parental leave and force majeure leave in Irish employment law are conferred by the Parental Leave Act, 1998 and 2006. A natural or adoptive parent whose child has not yet reached the age of 8 is entitled to eighteen working weeks of parental leave.

NOTE: The law surrounding parental leave changed in 2013 thanks to a new EU directive which was transposed into Irish law. You can read about the new parental leave situation here.

The parent must have at least one year’s continuous service and the leave can be taken in one block of eighteen weeks or, with the employer’s consent, a combination of days and hours.

The parent is obliged to give at least six weeks’ notice of intention to take parental leave and it is a condition of the leave that it be used to take care of a child.

The employer can postpone parental leave for no more than six months where the leave would have an adverse effect on his/her business.

Parental leave is unpaid leave and unlike maternity leave the employee is not entitled to any social welfare payments. However employees on parental leave benefit from all other employment benefits apart from remuneration and pension benefits.

Force Majeure Leave

Force majeure leave is actually paid leave. It occurs where for urgent family reasons owing to illness or injury the immediate presence of the employee is required where the injured/ill person is.

It may be taken in respect of a child, spouse, brother, sister, parent, grandparent or person to whom the employee is in loco parentis.

Force majeure leave cannot exceed three days in any period of twelve months or exceed five days in a period of thirty six consecutive months. (Note: circular 32/2007 from the Department of Enterprise and Skills affords slightly different arrangements in the education sector in respect of force majeure leave)

Section 13 of the Parental Leave Act, 1998 sets out the entitlement re force majeure leave:

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 majeure leave.

Other Types of Leave

Other types of leave include

  1. Adoptive leave
  2. Carer’s leave

All of these leave entitlements, in addition to maternity leave, have slightly different requirements, entitlements for employees, and obligations for employers.

Adoptive Leave

The Adoptive Leave Acts, 1995 and 2005 provide for adoptive leave in Ireland.  A mother or sole male adopter is entitled to 24 consecutive weeks of unpaid adoptive leave. There is an entitlement to an additional 16 weeks of adoptive leave, again unpaid. There are social welfare benefits available to the employee.

As with maternity leave the employee is obliged to give four weeks written notice of taking the leave and/or returning to work.

The employee continues to accrue his/her entitlements with the exception of remuneration.

The Adoptive Leave Act, 2005 provides further entitlements to the employee including

  • Time off for pre-adoption classes and meetings
  • The postponement of adoptive leave in the event of the hospitilisation of the child.

(See also the Adoptive Leave Act, 1995).

Disputes about Adoptive Leave

Disputes around adoptive leave (save for an unfair dismissals claim as a result of the failure of the employer to allow the return to work) are referred to the Rights Commissioner service.

Carer’s Leave

Carer’s leave entitlements are granted to employees who have at least 12 months continuous service courtesy of the Carer’s Leave Act 2001. It allows employees to temporarily leave employment for between 13 and 104 weeks to allow caring full time.

Carers may be entitled to carer’s benefit and are permitted to work for a maximum of 15 hours per week while on leave.

To qualify for carer’s leave an employee will need, inter alia, a medical assessment that the person for whom he/she will be caring is in need of a full time carer. The employee’s entitlements in employment will not be affected apart from those relating to remuneration, holidays, and pensions.

Generally, the employee is entitled to return to the same position that they left. If this is not feasible, then they should be no worse off in terms of their terms and conditions of employment.

Return to work. 14.—(1) On the termination of carer’s leave in accordance with this Act, the employee concerned shall be entitled to return to work—
(a) with the employer with whom he or she was working immediately before the start of the period or, where during the employee’s absence from work there was or were a change or changes of ownership of the undertaking in which the employee was employed immediately before the absence, the owner on the expiration of the period (“the successor”),
(b) in the job that the employee held immediately before the commencement of the period, and
(c) under the contract of employment in respect of which the employee was employed immediately before the commencement of the period or, where a change of ownership such as is referred to in paragraph (a) has occurred, under a contract of employment with the successor, that is identical to the contract under which the employee was employed immediately before such commencement, and (in either case) under terms or conditions not less favourable to the employee than those that would have been applicable to him or her if he or she had not been so absent from work.
(2) For the purposes of subsection (1)(b), where the job held by an employee immediately before the commencement of a period of carer’s leave to which he or she is entitled was not the employee’s normal or usual job, the employee shall be entitled to return to work, either in that job or in his or her normal or usual job as soon as is practicable without contravention by the employee or the employer of any provision of a statute or provision made under statute.
(3) Where, because of an interruption or cessation of work at an employee’s place of employment that exists at the time of the expiration of a period of carer’s leave taken by the employee, it is unreasonable to expect the employee to return to work on such expiration, the employee may return to work instead when work resumes at the place of employment after the interruption or cessation, or as soon as reasonably practicable after such resumption.
Right to alternative employment. 15.—(1) Where an employee is entitled to return to work pursuant to section 14 but it is not reasonably practicable for the employer to permit the employee to return to work in accordance with that section, the employee shall be entitled to be offered by his or her employer suitable alternative employment under a new contract of employment.
(2) Work under a new contract of employment constitutes suitable alternative work for the purposes of this Act if—
(a) it is of a kind that is suitable in relation to the employee concerned and appropriate for the employee to do in the circumstances.
(b) the terms or conditions of the contract relating to the place where the work under it is required to be done, the capacity in which the employee concerned is to be employed and any other terms or conditions of employment are not substantially less favourable to the employee than those of his or her contract of employment immediately before the commencement of the period of absence from work while on carer’s leave, and
(c) the continuity of service is preserved.

Disputes between employer and employee in respect of carer’s leave must be referred to the Rights Commissioner service in the first instance.

You are strongly advised to seek professional legal advice in relation to any aspect of this or other employment law issue covered on this site.

Budget 2013-Employment Law Changes to Note

If you are an employer in Ireland the main changes from the budget presented in the Dail in December, 2012 are summarized below.

budget-ireland-2013

1. Maternity Benefit Change

From January 1, 2013 maternity benefit will be taxable income (although it will be exempt from the USC (universal social charge)). This is quite a unique change as it sees the taxation of a social welfare benefit and it will be interesting to see how it operates in practice.

2.  Redundancy Rebate

The statutory employer redundancy rebate will be abolished from January, 2013 also. The key date with this change is the date of dismissal: if the date of dismissal is post January 1st, 2013 there will be no rebate.

It is worth noting that the date of dismissal, according to redundancy legislation, is “the date that notice of termination of employment expires”.

3. Termination/Ex-Gratia Payments

“Top slicing relief” will no longer be available to termination/ex-gratia sums of €200,000 or more from January, 2013. (Top slicing relief is a tax relief which makes the termination more attractive to top earners.)

4. PRSI

From January 2013 employees who earn in excess of €352 per week will no longer get their PRSI free allowance.

Some of these changes can be pre-empted prior to 31st December, 2013 but clearly there is a very small window of time in which to do so.

Employers are advised to always consult an accountant and/or solicitor before making significant decisions in the areas referred to above.

 

Sick Leave and Illness Leave in Irish Employment Law-How to Avoid Needless Disputes with Your Employees

sick-leave-ireland

Another bloody sick cert…

Yes, it’s frustrating.

You are an employer and you have had it up to the two eyeballs with these sick certs.

You know he’s been seen drinking all over the parish at the weekend. And now he’s giving you this sick cert stating that he is suffering with back trouble.

Sick or illness leave can be a thorny subject in Irish workplaces and the source of much frustration for employers.

Disputes and bad feeling can easily arise through a simple lack of clarity and planning when drawing up the contract of employment or the company policy on sick leave.

There is no general entitlement under Irish law to be paid whilst out of work due to sickness/illness.

However it is something that can be provided for between the employer and employee when agreeing a contract of employment.

Doing so prevents rows, bad feeling and disputes arising between employer and employee.

The Terms of Employment (Information) Act 1994 specifically refers to the provision for incapacity for work due to sickness as being one of the things about which the employer must provide information to the employee within two months of starting employment.

The employee, if he/she has sufficient social insurance contributions, may qualify for illness benefit from the Department of Social Protection.

If there is provision in the contract for sick pay to be paid by the employer it is common for provision to be made for the illness benefit received by the employee to be paid over to the employer.

The contract of employment will probably also put a limit on the amount of paid sick leave that you are entitled to over a specific period of time, for example a 12 month period.

The employment contract should also provide clear rules and procedures as to the provision of medical certificates and notification to the employer. The medical certificate should also state when the employee is likely to be able to return to work. If this is not possible then weekly medical certificates will likely be required.

Whilst it is difficult to terminate the employment of an employee on sick leave, it is not impossible but considerations surrounding unfair dismissal should be borne in mind and legal advice sought.

Injury or Accident at Work

If the employee suffers an injury or occupational disease or is involved in an accident he/she may apply for injury benefit which is a weekly payment from the Department of Social Protection. However if he/she is being paid sick pay by the employer there will probably be a provision in the contract for the injury benefit payments to be paid to the employer.

The employee can also, of course, bring a personal injuries claim against the employer.

Public Holidays and Annual Leave

If the employee is on annual leave and suffers an illness for which he/she can provide a medical certificate he/she is entitled to annual leave at a later date in lieu of the sick days.

If the employee is certified sick then the employer cannot insist that he take annual leave to cover this period.

It is a similar situation in relation to public holidays: if the employee can certify that he was sick during a public holiday he is entitled to time off for the public holiday he missed.

Public Service and Specific Industries

Many public servants and particular categories of workers, for example teachers, enjoy better entitlements in relation to sick leave and may well enjoy paid sick leave. In fact public servants have enjoyed six months paid sick leave followed by a further six months on half pay.

Many public servants also enjoy uncertified sick pay entitlements but these perks are due to change from January, 2014 thanks to a recent Labour Court recommendation. Teachers’ uncertified sick leave entitlements have also come under pressure following the Labour Court recommendation and have changed since September, 2012.

If you are an employers and you are concerned about your existing employment contracts you might be interested in having them reviewed/drafted.

You might also be interested in how to manage sickness related absence from the workplace.

You can learn more about our services in this area here.