maternity leave

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

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.

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.

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

Carer’s Leave

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

Relevant legislation: Carer’s Leave Act, 2001.

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.

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.

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

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

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.

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

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.

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

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.

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

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

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

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

sickness of the employee and
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 1^st 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

taking maternity leave
returning to work
taking additional maternity leave.