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.
Premature Births-Extension of Maternity Leave
The Social Welfare Act, 2017 brings in a significant change in respect of maternity leave for premature births. Babies born prematurely after 1st October, 2017 give rise to a further period of maternity leave for the mothers of such babies.
Section 15, Social Welfare Act, 2017 and section 16, Social Welfare Act, 2017 are the relevant sections.
The further period of maternity leave is equal to the ‘premature birth period’ defined by Section 15(2) of the 2017 Act commencing on the actual date of birth and expiring two weeks before the expected week of birth. Provision is also made for the extended payment of State maternity benefit for the length of the premature birth period.
Section 15(2):
(2) Section 51 (amended by section 24 of the Social Welfare (Miscellaneous Provisions) Act 2010 ) of the Principal Act is amended in subsection (1) by the insertion, in paragraph (a), of the following:
“ ‘premature birth period’ means a period which—
(a) commences on a date of confinement which occurs on or after 1 October 2017, and
(b) expires two weeks before the end of the expected week of confinement;”.
The additional benefits arise after the initial, statutory 26 weeks’ maternity leave.
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. From 26th March, 2018 the standard rate will be €240.
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
- taking maternity leave
- returning to work
- taking additional maternity leave.
