Adoptive Leave

Overview I

Adoptive leave is broadly similar to maternity leave. The legislation applies to domestic adoptions and adoptions from abroad.

The principal entitlement is to take leave of a minimum of 24 weeks from the date the placement for adoption.  An employee is entitled to take up to 16 additional weeks’ adoptive leave after termination of normal adoptive leave. Notice of additional leave must be given not more than four weeks before the originally intended return date

The principal rights are granted to the adopting mother. An adopting mother (or sole father) is the person with whom the child has been placed or is being placed with a view to making an adoption order, or for bringing into effect, a foreign adoption.


Overview II

Broadly similar provisions as apply to maternity leave, apply in respect of protection of the employee’s rights during adoptive leave and additional adoptive leave. There are similar protections against unfavourable treatment for parents taking adoptive leave as apply to maternity leave.  There is an entitlement to return to work.

There is no entitlement to remuneration during the period of leave.  There is a right to return to work with the employee, or with the successor in the case of the transfer of business. The intended date of return must be notified. There is a social welfare benefit equivalent to maternity pay benefit.

There is provision for attendance at pre-adoption classes and meetings, which are required to be attended.  An employee is entitled to time off without loss of pay to attend pre-adoption classes and meetings which the person is obliged to attend.  The dates must be notified to the employer, and appropriate proof must be given.


Notice

Broadly similar notice periods apply to adoptive leave, as apply to maternity leave.  The notice of intention to take leave must be given as soon as reasonably practicable, but not less than four weeks before the expected date of placement.  The expected date of placement is to be notified as soon as reasonably practicable.

Additional adoptive leave of up to 16 weeks may be taken.  The notice must be given in writing as soon as practicable but not later than four weeks before the expected date of return to work. It may be revoked up to four weeks before return.

Evidence by way of a certificate of placement must be given at less than four weeks before that date. The notice must be given as soon as practicable, but in any event, must not be less than four weeks A certificate of placement is to be furnished at least four weeks before placement.  Certificates of placement are issued by the Health Service Executive or accredited adopting bodies.

In the case of an inter-country adoption, a copy of the declaration of eligibility and suitability under the Adoption Act, is to be furnished, prior to placement. Written details of the particulars and details of the placement are to be furnished as soon as practicable after placement.


Illness and Hospitalisation

Where a parent becomes sick during leave or additional leave the leave can be postponed in the same way as maternity leave. There are equivalent provisions regarding termination of adoptive leave where the employee is ill and can take sick leave.

In this event, leave may count as sick leave Additional leave is terminated on a date agreed by the employer. In such circumstances, there may be a right to sick pay under the relevant scheme.

There are similar provisions in relation to the postponement of adoptive leave in the event of the hospitalisation of the child.  A postponement, suspension, or resumption is provided for in the case of a hospitalised child on much the same terms that apply to maternity leave. Leave may recommence, not later than seven days after the child is discharged from the hospital or such other date as is agreed.

Where the placement is less than 24 weeks, the employee must notify the employer of the termination of placement as soon as reasonably practicable, but within no later than seven days.  This does not apply if the child has died. The employee is to return to work as soon as convenient, no later than the date on which the leave is due to expire.


Male Adopters

The EU Directives in relation to protective leave allow states to recognise such rights in relation to paternity and adoptive leave as they see fit. The Adoptive Leave Acts, 1995 and 2005 provides for adoptive leave for mothers. The provision of rights to mothers only is underpinned by the employment equality legislation which provides that the general gender equality provisions do not apply to maternity, breastfeeding or adoption.

The Adoptive Leave Act allows female employees to take leave for the purpose of an adoption.  An adopting mother or a sole male adopter is entitled to not less than 24 consecutive weeks leave from the date of placement.  Additional adoptive leave of up to 16 weeks may be taken.  The same principles apply to domestic and foreign adoptions.

Men may be able to claim a contractual right to adoptive leave on the basis of a specific right or on the basis of a contractual equality right. The adopting father may succeed to the mother’s leave if the mother dies. He is entitled to the entire leave or the balance of the leave.  The same broad conditions apply, as apply to maternity leave.


Domestic Adoption

An employed adopting mother (or sole male adopter) is entitled to leave (known as ‘adoptive leave’) from the employee’s employment.  Adoptive leave begins on the date of placement and is for a minimum period of 24 weeks. The minimum period may be extended by order made by the Minister with the consent of the Minister for Social and Family Affairs and the Minister for Finance. It was extended from 16 to 24 weeks in 2006.

In the case of an adoption other than a foreign adoption, the entitlement to the minimum period of adoptive leave is subject to an employed adopting mother (or sole male adopter)

  • having, as soon as is reasonably practicable but not later than 4 weeks before the expected day of placement, caused her employer to be notified in writing of her intention to take adoptive leave, and
  • having, as soon as is reasonably practicable, caused her employer to be notified in writing of the expected day of placement, and
  • causing her employer to be supplied with the certificate of placement as soon as is reasonably practicable but not later than 4 weeks after the day of placement.

Foreign Adoption

In the case of a foreign adoption, the entitlement to the standard period of adoptive leave is subject to the employed adopting mother (or sole male adopter)—

  • having, as soon as is reasonably practicable but not later than 4 weeks before the expected day of placement, caused her employer to be notified in writing of her intention to take adoptive leave, and
  • having, as soon as is reasonably practicable, caused her employer to be notified in writing of the expected day of placement, and
  • having caused her employer to be supplied with a copy of an applicable ‘declaration of eligibility and suitability before the expected day of placement, if not already supplied, and
  • causing her employer to be supplied with particulars in writing of the placement as soon as is reasonably practicable after the day of placement.

There are provisions for revocation and variation of the notice.


Additional Leave I

An employed adopting mother (or sole male adopter) who is entitled to, is on, adoptive leave or transferred paternity leave shall, upon request, be entitled to further leave (to be known as ‘additional adoptive leave’) from her employment. The additional adoptive leave or, where applicable, any period of transferred paternity leave shall commence immediately after the adoptive leave and be for a maximum period of 16 weeks. The maximum period may be extended by order made by the Minister and was extended from 8 weeks in 2006.

The entitlement to additional adoptive leave is subject to an employed adopting mother (or sole male adopter) having caused her employer to be notified in writing of her intention to take such leave.  Notification must be given either at the same time as the relevant initial notification or not later than 4 weeks before the date which would have been the expected date of her return to work if the employed adopting mother (or sole male adopter) had not taken the additional adoptive leave or, where the employed adopting mother (or sole male adopter) takes transferred paternity leave, the date on which the additional adoptive leave is to commence.


Additional Leave II

A notification may be revoked by a further notification in writing by or on behalf of the employed adopting mother (or sole male adopter) to her employer not later than 4 weeks before the date which would have been the expected date of her return to work if the employed adopting mother (or sole male adopter) had not taken the additional adoptive leave.

In the case of a foreign adoption, where the employed adopting mother (or sole male adopter) requires a period of additional adoptive leave before the day of placement, for the purposes of familiarisation with the child who is to be adopted, some or all of the additional adoptive leave may be taken before the day of placement.

There is provision for revocation and variation, equivalent to those for maternity rights.   A period of additional adoptive leave shall expire immediately before the day of placement.


Death of Mother

Where an adopting mother dies, the adopting father is entitled to adoptive leave from his employment. The adoptive leave is for a period of 24 weeks in case the adopting mother dies on or after the day of placement, 24 weeks less the period between the date of placement and the date of her death, or in any other case, 24 weeks. The period may be extended by order made by the Minister with the consent of the Minister for Social and Family Affairs and the Minister for Finance.


Adoption Classes

An employee is entitled to time off from work, without loss of pay, to attend any pre-adoption classes and meetings which the employee is obliged to attend. The exceptions for certain persons in public service (Gardai, Defence services and other services) that apply to pre-natal classes apply.

Classes are pre-adoption classes and meetings in the State. The entitlement of an employee to time off is subject to his or her having notified the employer in writing of the dates and times of the classes concerned, or the date and time of each class, as soon as practicable but not later than 2 weeks before the date of the first class, or the class concerned, as the case may be. He must produce to the employer, on request, an appropriate document indicating the dates and times of the classes, or the date and time of the class, concerned.

Where the circumstances are such that, in the case of a particular class, non-compliance by the employee with the above obligation is not due to any neglect or default by the employee in relation to attendance at the class, the employee is deemed to have complied with the requirements not later than one week after the date of the class concerned, he or she provides the employer with evidence of the attendance and an indication of the circumstances which gave rise to the non-compliance.


Termination

Where the placement of a child with an adopting parent terminates before the expiration of the period of leave from the employment to which the adopting parent is entitled (other than as a result of the death of the child), the adopting parent shall notify the employer in writing of the date of termination as soon as reasonably practicable but not later than 7 days after that date.

On receipt by her employer of notification, the adopting parent is required to return to work on such date as is convenient to her employer but not later than the date on which the notified period of adoptive leave or, as the case may be, the notified period of additional adoptive leave expires. The employer must give the adopting parent one week’s notice of the day on which she is required to return to work.

In the case of a foreign adoption, where an adopting parent takes additional adoptive leave before the day of placement, and no placement takes place, she shall return to work on the day on which the notified period of such leave expires, at the latest, and shall cause her employer to be notified of the intended date of her return to work as soon as is reasonably practicable.

Where, in the opinion of a WRC, there are reasonable grounds for an adopting parent’s failure to give a notice or for an adopting parent giving it otherwise than within the time limits specified thereunder, the rights commissioner or Tribunal, as the case may be, shall extend the time for service of the said notice.


Certificates

An adopting parent shall, if she so requests, be issued with a certificate of placement, by the health authority which arranges the placing of the child with the adopting parent, or by the accredited body which arranges the placing of the child with the adopting parent.  The certificate of placement must be issued, no later than 7 days from the date of receipt of the request.

The certificate of placement must state the date on which it is issued, the day of placement, the sex and date of birth of the child, the name and address of the adopting parent or parents, and shall be signed by a person authorised to issue such a certificate on behalf of the issuing authority.

The certificate of placement or a certified copy thereof shall, unless the contrary is proved, be evidence of the matters referred to therein in any proceedings arising out of or relating to the exercise or attempted exercise by an adopting parent of her rights under this Act.


Continuity of Employment I

While absent from work on adoptive leave, an employee is deemed to have been in the employment of the employer and is treated as if the employee had not been so absent. The absence does not affect any right of the employee related to the employment (other than the right to remuneration during the absence), whether conferred by statute, contract or otherwise.

While absent from work on additional adoptive leave, an employee is deemed to have been in the employment of the employer and is treated as if the employee had not been so absent. The absence shall not affect any right or obligation related to the employee’s employment (other than the employee’s right to remuneration or superannuation benefits or any obligation to pay contributions in or in respect of the employment during the absence), whether conferred or imposed by statute, contract or otherwise.

While absent from work attending pre-adoption classes or meetings in accordance with the right to do so, an employee shall be deemed to be in the employment of the employer and shall be treated as if the employee had not been so absent. The absence shall not affect any right related to the employee’s employment, whether conferred by statute, contract or otherwise.


Continuity of Employment II

A period of absence from work in accordance with the Act is not treated as part of any other leave (including sick leave or annual leave) to which an employee is entitled.

Where, on starting employment, an employee is on probation, is undergoing training in relation to it or is an apprentice, the probation, training or apprenticeship shall stand suspended during any absence from work under the legislation and shall be completed by the employee on returning to work after the absence.

An employee is deemed not to be an employed contributor for the purposes of social insurance contributions while absent from work on adoptive leave or additional adoptive leave if the employee does not receive any reckonable earnings (within that meaning) in respect of that week.


Protective Voidance

Each of the following is deemed void:

  • any purported termination of or suspension from the employment of an adopting parent while absent from work on adoptive leave or additional adoptive leave, or attending pre-adoption classes or       meeting in accordance with the statutory right
  • any notice of termination of the employment of an adopting parent given during the parent’s absence from work on adoptive leave or additional adoptive leave, or while attending pre-adoption classes or meetings in accordance with the statutory right and expiring after the absence.

Any notice of termination of employment, or a suspension from employment, which is given to or imposed on an adopting parent before the adopting parent begins a period of leave under the Act and which is due to expire during the adopting parent’s absence from work on that leave and any notice of termination or any suspension shall be extended by the period of the absence concerned.


Right to Return I

An adopting parent (employee) who is absent from work while on adoptive leave or additional adoptive leave is entitled to return to work either—

  • with the employer with whom the employee was working immediately before the absence, or
  • if during the absence there was a change of ownership of the undertaking in which the employee was employed immediately before the absence, with the owner of the undertaking when the absence ended,
  • in the job, which the employee held immediately before the absence began, and
  • under the contract of employment under which the employee was employed immediately before the absence began, or the successor, which is identical to the contract under which the employee was employed immediately before the absence under terms and conditions that are not less favourable than those that would have been applicable, and that incorporate any improvements in the terms   and conditions of employment to which the employee would have been entitled, if the employee had not been so absent from work.

Right to Return II

Where the job held by the employee immediately before the absence was not the employee’s normal or usual job, the employee is entitled to return to work, either in the normal or usual job or in the job so held, as soon as is practicable. A job means the nature of the work which the employee is employed to do in accordance with the employee’s contract of employment and the capacity and place in which the employee is so employed.

Where there is a new contract of employment the work required to be done under it shall be of a kind which is suitable in relation to the employee concerned and appropriate for her to do and 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 less     favourable to the employee than those of the employee’s contract of employment immediately before the absence from work on adoptive leave or additional adoptive leave, and
  • incorporate any improvement in the terms or conditions of employment to which the employee would have been entitled if the employee had not been so absent from work during that period.

Notice

An employee who is entitled to, or is on, adoptive leave or additional adoptive leave shall cause the employer (or, if aware of a change of ownership of the undertaking concerned, the successor) to be notified in writing of the employee’s intention to return to work and of the date on which the employee expects to do so—

  • where the leave is for a period of 4 weeks or less, at the same time as the employee notifies the employer of the intention to take the leave,
  • where the leave is for a period of more than 4 weeks in case the leave is postponed leave, either at the same time as the employee notifies the employer of the intention to take the leave, or at least 4 weeks before the date of the expected return to work, whichever is the later.

Where, in the opinion of the WRC, there are reasonable grounds for an adopting parent’s failure to give the notice or for an adopting parent giving it otherwise than in the time limits specified thereunder, the WRC shall extend the time for service of the said notice.


Interruption

Where, because of an interruption or cessation of work at her place of employment, existing on the date specified in a notification or on the date on which an adopting parent is required to return to work), as the case may be, it is unreasonable to expect an adopting parent to return to work on such date, she may return to work instead when work resumes at the place of employment after the interruption or cessation, or as soon as is reasonably practicable after such resumption.

Where, because of an interruption or cessation of work at her place of employment, existing on the date specified in a notification or on the date on which an adopting parent is required to return to work as the case may be, it is unreasonable to expect an adopting parent to return to work on such date, she may return to work instead when work resumes at the place of employment after the interruption or cessation, or as soon as is reasonably practicable after such resumption.


Agreement Void

Any agreement, whether a contract of employment or not is void in so far as it purports to exclude or limit the application of any provision of the Act or is inconsistent with any provision of the Act. A provision in an agreement which is or becomes less favourable in relation to an adopting parent than a similar or corresponding entitlement conferred on her by the Act is deemed to be so modified as to be not less favourable to her.

Nothing in the Act or any other enactment is construed as prohibiting the inclusion in an agreement of a provision (subsequently referred to in this section as “the additional provision”) in relation to adoption, in addition to those required by the Act, the effect of which would be to render the agreement more favourable to an adopting parent than it would be if it did not include the additional provision. The inclusion of the additional provision in an agreement shall not, by reason of the fact that it applies to an adopting parent only, confer any right under the Act or any other enactment.


References and Sources

Primary References

Employment Law  Meenan  2014 Ch.13

Employment Law Supplement Meenan 2016

Employment Law Regan & Murphy  2009 ( 2nd Ed 2017) Ch.11

Employment Law in Ireland Cox & Ryan 2009 Ch.13

Adoptive Leave Act 1995

Adoptive Leave Act 1995 (Commencement) Order 1995, S.I. No. 64 of 1995

Adoptive Leave (Referral of Disputes and Appeals) (Part V) Regulations 1995, S.I. No. 195 of 1995

Adoptive Leave (Calculation of Weekly Remuneration) Regulations 1995, S.I. No. 196 of 1995

Adoptive Leave Act 1995 (Extension of Periods of Leave) Order 2006, S.I. No. 52 of 2006

2/1995

Adoptive Leave Act 2005

Adoptive Leave Act 2005 (Commencement) Order 2005, S.I. No. 724 of 2005

Adoptive Leave Act 2005 (Commencement) Order 2006, S.I. No. 25/2005

Other Irish Books

Employment Law Forde & Byrne 2009

Principles of Irish Employment Law         Daly & Doherty   2010

Employment Law Contracts (Book & CD-ROM)        Beauchamps, Solicitors          2011

Periodicals and Reports

Employment Law Yearbook (annual) Arthur Cox

Employment Law Reports

Irish Employment Law Journal

Employment Law Review

Websites

Workplace Relations Commission http://www.lrc.ie/en/

Irish Human Rights and Equality Commission https://www.ihrec.ie/

Health and Safety Authority http://www.hsa.ie/eng/

The Employment Law Review 8th  Ed.   Erika C. Collins 2017

Industrial Relations Law Reports

Employment Law in Context: Text and Materials 2nd  Ed. David Cabrelli 2016