Maternity Leave
Maternity Protection Act
AN ACT TO IMPLEMENT COUNCIL DIRECTIVE 92/85/EEC OF 19 OCTOBER 1992 ON THE INTRODUCTION OF MEASURES TO ENCOURAGE IMPROVEMENTS IN THE SAFETY AND HEALTH AT WORK OF PREGNANT WORKERS AND WORKERS WHO HAVE RECENTLY GIVEN BIRTH OR ARE BREASTFEEDING, TO REENACT WITH AMENDMENTS THE PROVISIONS OF THE MATERNITY PROTECTION OF EMPLOYEES ACTS, 1981 AND 1991, TO ENTITLE A MALE EMPLOYEE TO LEAVE IN CERTAIN CASES WHERE THE MOTHER OF HIS CHILD DIES, TO EXTEND AS A CONSEQUENCE OF THE ABOVE-MENTIONED PROVISIONS THE PROTECTION AGAINST UNFAIR DISMISSALS CONFERRED BY THE UNFAIR DISMISSALS ACT, 1977, AND TO PROVIDE FOR RELATED MATTERS. [27th December, 1994]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
Annotations:
Modifications (not altering text):
C1
Functions transferred and terms “Department of Community, Equality and Gaeltacht Affairs” and “Minister for Community, Equality and Gaeltacht Affairs” construed (1.04.2011) by Equality, Integration, Disability and Human Rights (Transfer of Departmental Administration and Ministerial Functions) Order 2011 (S.I. No. 139 of 2011), arts. 2, 3 and sch., subject to transitional provisions in arts. 4-8.
2. (1) The administration and business in connection with the exercise, performance or execution of any functions transferred by Article 3 are transferred to the Department of Justice and Law Reform.
(2) References to the Department of Community, Equality and Gaeltacht Affairs contained in any Act or instrument made under such Act and relating to any administration and business transferred by paragraph (1) shall, from the commencement of this Order, be read as references to the Department of Justice and Law Reform.
3. (1) The functions vested in the Minister for Community, Equality and Gaeltacht Affairs by or under any of the Acts mentioned in the Schedule are transferred to the Minister for Justice and Law Reform.
(2) …
(3) References to the Minister for Community, Equality and Gaeltacht Affairs contained in any Act or instrument made under such Act and relating to any functions transferred by this Article shall, from the commencement of this Order, be read as references to the Minister for Justice and Law Reform.
Editorial Notes:
E1
Collectively cited Maternity Protection Acts 1994 and 2004 included in definitions of “employment enactment” and “relevant enactment” (1.08.2015) by Workplace Relations Act 2015(16/2015), s. 2 and sch. 1 part 1 item 11, S.I. No. 338 of 2015, with the following effects:
• Authorised officers or inspectors under employment enactments deemed to be appointed under Workplace Relations Act 2015 (16/2015), s. 26(2) and subject to termination under s. 26(4).
• Powers of inspectors for purposes of relevant enactments defined in Workplace Relations Act 2015 (16/2015), s. 27.
• Workplace Relations Commission, an inspector or an adjudication officer authorised to disclose employer’s registered number or employee’s PPSN to enable Labour Court to perform functions under relevant enactments by Workplace Relations Act 2015 (16/2015) s. 31(5).
• Power of Workplace Relations Commission and official body to disclose information to each other concerning the commission of offence under relevant enactment provided by Workplace Relations Act 2015 (16/2015), s. 32.
• Power of Workplace Relations Commission and contracting authority to disclose information to each other concerning the commission of offence under employment enactment/ relevant enactment provided by Workplace Relations Act 2015 (16/2015), s. 33.
• Powers of Minister to prosecute under relevant enactments transferred to Workplace Relations Commission and references construed by Workplace Relations Act 2015 (16/2015), s. 37.
• Functions of EAT to hear claims under employment enactments transferred to Workplace Relations Commission and references to EAT construed by Workplace Relations Act 2015 (16/2015) s. 66(1), (2), not commenced as of date of revision.
E2
Previous affecting provision: functions transferred and terms “Department of Justice, Equality and Law Reform” and “Minister for Justice, Equality and Law Reform” construed as Department of/Minister for Community, Rural and Gaeltacht Affairs (1.06.2010) by Equality, Integration, Disability and Human Rights (Transfer of Departmental Administration and Ministerial Functions) Order 2010 (S.I. No. 217 of 2010), arts. 2-3 and sch., subject to transitional provisions in arts. 4-8. Name of Minister and Department changed to Justice and Law Reform and references construed (2.06.2010) by Justice, Equality and Law Reform (Alteration of Name of Department and Title of Minister) Order 2010 (S.I. No. 216 of 2010).
E3
Previous affecting provision: functions transferred and terms “Department of Equality and Law Reform” and “Minister for Equality and Law Reform” construed as Department of/Minister for Justice (8.07.1997) by Equality and Law Reform (Transfer of Departmental Administration and Ministerial Functions) Order 1997 (S.I. No. 297 of 1997), arts. 2-4 and sch., subject to transitional provisions in arts. 5-9. Name of Department and Minister changed to Justice, Equality and Law Reform (9.07.1997) by Justice (Alteration of Name of Department and Title of Minister) Order 1997 (S.I. No. 298 of 1997).
PART I
Preliminary and General
Short title and commencement.
1.—(1) This Act may be cited as the Maternity Protection Act, 1994.
(2) This Act shall come into operation on such day as may be fixed by order made by the Minister, and different days may be so fixed for different provisions and for different purposes.
Annotations:
Editorial Notes:
E4
Power pursuant to subs. (2) exercised (30.01.1995) by Maternity Protection Act, 1994 (Commencement) Order 1995 (S.I. No. 16 of 1995).
2. The 30th day of January, 1995, is hereby fixed as the day on which the Maternity Protection Act, 1994 shall come into operation.
Interpretation.
2.—(1) In this Act—
“the 1977 Act” means the Unfair Dismissals Act, 1977;
“the 1981 Act” means the Maternity Protection of Employees Act, 1981;
“the 1989 Act” means the Safety, Health and Welfare at Work Act, 1989;
“the 1992 Directive” means Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding;
“additional maternity leave” has the meaning assigned by section 14;
“associated employer” has the meaning assigned by section 27 (3);
“the Authority” means the National Authority for Occupational Safety and Health;
“confinement” and “the date of confinement” have the meanings respectively assigned to them by section 41 of the Social Welfare (Consolidation) Act, 1993;
“contract of employment” means, subject to subsection (2)—
(a) a contract of service or apprenticeship, or
(b) any other contract whereby an individual agrees with a person who is carrying on the business of an employment agency, within the meaning of the Employment Agency Act, 1971, and is acting in the course of that business, to do or perform personally any work or service for another person (whether or not that other person is a party to the contract),
whether the contract is express or implied and if express, whether it is oral or in writing;
“employee”, subject to subsection (2), means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment;
“employee who has recently given birth” means at any time an employee whose date of confinement was not more than 14 weeks earlier and who has informed her employer of her condition;
“employee who is breastfeeding” means at any time an employee whose date of confinement was not more than twenty-six weeks earlier, who is breastfeeding and who has informed her employer of her condition;
“employer”, subject to subsection (2), means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;
“job” has the meaning assigned by section 26 (3);
“maternity leave” has the meaning assigned by section 8;
“the Minister” means the Minister for Equality and Law Reform;
F1[‘paternity leave’ and ‘transferred paternity leave’ have the same meanings as they have in the Paternity Leave and Benefit Act 2016;]
“pregnant employee” means an employee who is pregnant and who has informed her employer of her condition;
“successor” has the meaning assigned by section 26 (1);
“the Tribunal” means the Employment Appeals Tribunal.
(2) For the purposes of this Act—
(a) a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, shall be deemed to be an employee employed by the State or Government, as the case may be, under a contract of service;
(b) an officer or servant of a local authority for the purposes of the Local Government Act, 1941, a harbour authority, a health board or F2[a member of staff of an education and training board] shall be deemed to be an employee employed by the authority F2[or board], as the case may be, under a contract of service; and
(c) in relation to an employee whose contract of employment falls (or, where the employment has ceased, fell) within paragraph (b) of the definition of “contract of employment” in subsection (1), the person who is liable to pay the employee’s wages shall be deemed to be the employer.
(3) Subject to subsections (1) and (2), expressions used in this Act have the same meaning as in the 1992 Directive.
(4) In this Act a reference to a Part or section is to a Part or section of this Act, unless it is indicated that reference to some other enactment is intended.
(5) In this Act a reference to a subsection or paragraph is to the subsection or paragraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.
(6) In this Act a reference to an enactment includes a reference to that enactment as amended by any other enactment, including this Act.
Annotations:
Amendments:
F1
Inserted (1.08.2016) by Paternity Leave and Benefit Act 2016 (11/2016), 34(a), S.I. No. 435 of 2016.
F2
Substituted (1.07.2013) by Education and Training Boards Act 2013 (11/2013), s. 72(1), sch. 6 item 18, S.I. No. 211 of 2013.
F3
Inserted by Children and Family Relationships Act 2015 (9/2015), s. 176(a), not commenced as of date of revision.
Modifications (not altering text):
C2
Prospective affecting provision: functions transferred and Employment Appeals Tribunal construed by Workplace Relations Act 2015 (16/2015), s. 66, not commenced as of date of revision.
Transfer of functions from Employment Appeals Tribunal
66.(1) (a) All functions that, immediately before the dissolution day, were vested in the Employment Appeals Tribunal are transferred to the Commission in so far as they relate to any claim for redress, dispute or complaint determined by the Employment Appeals Tribunal under an employment enactment before that day.
(b) All functions that, immediately before the dissolution day, were vested in the Employment Appeals Tribunal are transferred to the Labour Court in so far as they relate to appeals determined by the Employment Appeals Tribunal under an employment enactment before that day.
(2) (a) References in any enactment or instrument under an enactment to the Employment Appeals Tribunal in so far as they relate to a function transferred by paragraph (a) of subsection (1) shall be construed as references to the Commission.
(b) References in any enactment or instrument under an enactment to the Employment Appeals Tribunal in so far as they relate to a function transferred by paragraph (b) of subsection (1) shall be construed as references to the Labour Court.
(3) This section shall come into operation on the dissolution day.
C3
Prospective affecting provision: subs. (1) amended by insertion of definitions and subs. (1A) inserted by Children and Family Relationships Act 2015 (9/2015), s. 176(a), not commenced as of date of revision.
F3[‘Act of 2015’ means the Children and Family Relationships Act 2015;]
F3[‘expectant father’ shall be construed in accordance with subsection (1A) (inserted by section 176 of the Act of 2015);]
F3[‘other parent’ means a person (other than the mother) who is, under section 5 of the Act of 2015, a parent of a child;]
F3[(1A) In this Act, a reference to an expectant father includes a person who has given his or her consent in accordance with section 11 of the Act of 2015 to a DAHR procedure (within the meaning of section 4 of that Act) where that procedure results in a pregnancy.]
Editorial Notes:
E5
The Safety, Health and Welfare At Work Act 1989 was repealed (1.09.2005) and replaced by Safety, Health and Welfare At Work Act 2005 (10/2005), s. 4 and sch. 2 pt. 1, S.I. No. 328 of 2005.
Orders and regulations.
3.—(1) The Minister may, in relation to any provision of this Act relating to notification (or confirmation of notification), by order vary any such provision.
(2) An order under this Act may contain such consequential, supplementary and ancillary provisions, including any provisions modifying any provision of this Act, as the Minister considers necessary or expedient.
(3) Any power under this Act to make an order includes power to amend or revoke an order made in the exercise of that power.
(4) Where an order is proposed to be made under this Act, other than an order under section 1, a draft of the order shall be laid before both Houses of the Oireachtas, and the order shall not be made until a resolution approving the draft has been passed by each such House.
(5) Every regulation made under this Act shall be laid before each House of the Oireachtas as soon as practicable after it is made and, if a resolution annulling the regulation is passed by either such House within the next twenty-one days on which the House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done under the regulation.
Voidance or modification of certain provisions in agreements.
4.—(1) A provision in any agreement shall be void in so far as it purports to exclude or limit the application of any provision of this Act or is inconsistent with any provision of this Act.
(2) A provision in any agreement which is or becomes less favourable in relation to an employee than a similar or corresponding entitlement conferred on the employee by this Act shall be deemed to be so modified as to be not less favourable.
(3) Nothing in this Act shall be construed as prohibiting any agreement from containing any provision more favourable to an employee than any provision in Parts II to VI.
(4) References in this section to an agreement are to any agreement, whether a contract of employment or not, and whether made before or after the commencement of this Act.
PART II
Entitlement to Maternity Leave
Annotations:
Editorial Notes:
E7
Redress and appeal procedures for dispute about entitlements under Part provided (1.10.2015) by Workplace Relations Act 2015 (16/2015), ss. 41, 44, sch. 5 part 3 item 1 and sch. 6 part 2 item 6, S.I. No. 410 of 2015.
Interpretation of Part II.
7.—(1) In this Part “the minimum period of maternity leave” has the meaning assigned by section 8.
(2) References in this Part to an employee are references to a female employee only.
(3) References in this Part to a pregnant employee include, as respects any time before the expiry of her maternity leave, an employee who was pregnant immediately before that leave began.
Entitlement to maternity leave.
F4[8.—(1) Subject to this Part, a pregnant employee shall be entitled to leave, to be known (and referred to in this Act) as ‘maternity leave’, from her employment for a period (in this Part referred to as ‘the minimum period of maternity leave’ of not less than—
(a) F5[26 consecutive weeks], or
(b) F6[26 weeks] part of which is postponed in accordance with section 14B,
as may be appropriate.
(2) The Minister may by order, made with the consent of the Minister for Social and Family Affairs and the consent of the Minister for Finance, amend subsection (1) and section 13(2) so as to extend the period mentioned in each of those subsections.]
Annotations:
Amendments:
F4
Substituted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s. 2, S.I. No. 652 of 2004.
F5
Substituted (1.02.2007) by Maternity Protection Act 1994 (Extension of Periods of Leave) Order 2006 (S.I. No. 51 of 2006), art. 8(a), in effect as per art. 2.
F6
Substituted (1.02.2007) by Maternity Protection Act 1994 (Extension of Periods of Leave) Order 2006 (S.I. No. 51 of 2006), art. 8(b), in effect as per art. 2.
Modifications (not altering text):
C4
Functions transferred and references to “Department of Finance” and “Minister for Finance” construed (29.07.2011) by Finance (Transfer of Departmental Administration and Ministerial Functions) Order 2011 (S.I. No. 418 of 2011), arts. 2, 3, 5 and sch. 1 part 2, in effect as per art. 1(2), subject to transitional provisions in arts. 6-9.
2. (1) The administration and business in connection with the performance of any functions transferred by this Order are transferred to the Department of Public Expenditure and Reform.
(2) References to the Department of Finance contained in any Act or instrument made thereunder and relating to the administration and business transferred by paragraph (1) shall, on and after the commencement of this Order, be construed as references to the Department of Public Expenditure and Reform.
3. The functions conferred on the Minister for Finance by or under the provisions of —
(a) the enactments specified in Schedule 1, and
(b) the statutory instruments specified in Schedule 2,
are transferred to the Minister for Public Expenditure and Reform.
…
5. References to the Minister for Finance contained in any Act or instrument under an Act and relating to any functions transferred by this Order shall, from the commencement of this Order, be construed as references to the Minister for Public Expenditure and Reform.
E8
Power pursuant to section exercised (1.02.2006) by Maternity Protection Act 1994 (Extension of Periods of Leave) Order 2006 (S.I. No. 51 of 2006), arts. 4 and 8, in force as per art. 2.
E9
Previous affecting provision: section amended (1.02.2006) by Maternity Protection Act 1994 (Extension of Periods of Leave) Order, 2006 (S.I. No. 51 of 2006), art. 4, superseded by art. 8 of the same instrument above.
E10
Previous affecting provision: section amended (8.02.2001) by Maternity Protection Act, 1994 (Extension of Periods of Leave) Order, 2001 (S.I. No. 29 of 2001), art. 4; revoked (18.10.2004) by Maternity Protection Act 1994 (28/2004), s. 26, S.I. No. 652 of 2004.
Notification to employer.
9.—(1) Entitlement to the minimum period of maternity leave shall be subject to a pregnant employee—
(a) having, as soon as reasonably practicable but not later than four weeks before the commencement of maternity leave, notified in writing her employer (or caused her employer to be so notified) of her intention to take maternity leave; and
(b) having, at the time of the notification, given to her employer or produced for her employer’s inspection a medical or other appropriate certificate confirming the pregnancy and specifying the expected week of confinement.
(2) A notification under this section may be revoked by a further notification in writing by the employee concerned to her employer.
Allocation of minimum period of maternity leave.
10.—(1) Subject to subsection (2) and sections 11 to 13, the minimum period of maternity leave shall commence on such day as the employee selects, being F7[not later than two weeks before the end of the expected week of confinement], and shall end on such day as she selects, being not earlier than four weeks after the end of the expected week of confinement.
(2) Where an employee is employed under a contract for a fixed term and that term expires before the day which, apart from this subsection, would be the last day of her maternity leave, then—
(a) notwithstanding any other provision in this Part, the last day of her maternity leave shall be the day on which the term expires; and
(b) nothing in this Part shall affect the termination of the employee’s contract of employment on that day.
Annotations:
Amendments:
F7
Substituted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s. 3, S.I. No. 652 of 2004.
Variation in allocation of minimum period of maternity leave.
11.—(1) Where it is certified by a registered medical practitioner or otherwise to the satisfaction of the Minister and the Minister for Social Welfare that, for an employee specified in the certificate, the minimum period of maternity leave should for a medical reason so specified commence on a date so specified, and the certificate is produced for inspection by the employer concerned within such period as may be prescribed by regulations made by the Minister under this section, the minimum period of maternity leave for that employee shall commence on the date so specified.
(2) Where a certificate under this section is issued and the requirement in subsection (1) relating to the production of the certificate for the employer’s inspection is complied with, the employee specified in the certificate—
(a) shall be taken to have informed her employer of her pregnancy (if she had not previously done so); and
(b) shall be deemed to have complied also with section 9 (1) (a).
Extension of maternity leave.
12.—(1) Where the date of confinement of a pregnant employee occurs in a week after the expected week of confinement, the minimum period of maternity leave shall be extended by such number of consecutive weeks (subject to a maximum of four consecutive weeks) after the week in which the date of confinement occurs as ensures compliance with section 10.
(2) Where the minimum period of maternity leave is proposed to be extended under this section, the employee concerned shall—
(a) as soon as practicable after the proposal for such extension, notify in writing her employer (or cause her employer to be so notified) of the proposed extension; and
(b) as soon as practicable after the date of confinement, confirm in writing to her employer the notification under paragraph (a) and specify the duration of the extension.
Commencement of maternity leave (early confinement).
13.—(1) Where, in relation to a pregnant employee, the date of confinement occurs in a week that is four weeks or more before the expected week of confinement, the employee shall, where the circumstances so require, be deemed to have complied with section 9 (1) (a) if the notification required by that section is given in the period of 14 days commencing on the date of confinement.
F8[(2) Notwithstanding section 10(1), but subject to regulations under section 11, the minimum period of maternity leave for an employee referred to in subsection (1) shall be a period of not less than—
(a) F9[26 consecutive weeks], or
(b) F9[26 weeks] part of which is postponed in accordance with section 14B,
as may be appropriate, commencing on whichever of the following is the earlier—
(i) the first day of maternity leave taken in accordance with section 10, or
(ii) the date of confinement.]
Annotations:
Amendments:
F8
Substituted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s. 4, S.I. No. 652 of 2004.
F9
Substituted (1.02.2007) by Maternity Protection Act 1994 (Extension of Periods of Leave) Order 2006 (S.I. No. 51 of 2006), art. 9(a) and (b), in force as per art. 2.
Editorial Notes:
E11
Previous affecting provision: subs. (2) substituted (1.02.2006) by Maternity Protection Act 1994 (Extension of Periods of Leave) Order 2006 (S.I. No. 51 of 2006), art. 5, in force as per art. 2 and superseded by art. 9 of the same instrument above.
E12
Previous affecting provision: subs. (2) substituted (8.02.2001) by Maternity Protection Act, 1994 (Extension of Periods of Leave) Order 2001 (S.I. No. 29 of 2001), art. 5, in force as per art. 2; revoked (18.10.2004) by Maternity Protection Act 1994 (28/2004), s. 26, S.I. No. 652 of 2004.
Entitlement to additional maternity leave.
14.—F10[(1) An employee who has taken maternity leave shall, if she so wishes, be entitled in accordance with this section to further leave from her employment, to be known (and referred to in this Act) as ‘additional maternity leave’, for a maximum period of—
(a) F11[16 consecutive weeks] commencing immediately after the end of her maternity leave F12[and, where applicable, any period of transferred paternity leave taken by her], or
(b) F11[16 weeks], all or part of which is postponed in accordance with section 14B, commencing either in accordance with that section or immediately after the end of her maternity leave F12[and, where applicable, any period of transferred paternity leave taken by her],
as may be appropriate.]
(2) An employee shall be entitled to additional maternity leave, whether or not the minimum period of maternity leave has been extended under section 12.
(3) F10[Subject to section 14B, entitlement to additional maternity leave] shall be subject to an employee having notified in writing her employer (or caused her employer to be so notified) in accordance with subsection (4) of her intention to take such leave.
F13[(4) Notification under subsection (3) shall be given either at the same time as the relevant notification under section 9 or not later than four weeks before—
(a) the date which would have been the employee’s expected date of return to work under Part IV if she had not taken the additional maternity leave, or
(b) where the employee takes transferred paternity leave, the date on which the additional maternity leave is, under subsection (1), to commence.]
(5) A notification under this section may be revoked by a further notification in writing given by or on behalf of the employee concerned to her employer not later than four weeks before the date which would have been her expected date of return to work under Part IV if she had not taken the additional maternity leave.
F10[(6) The Minister may by order amend subsection (1) so as to extend the period mentioned in that subsection.]
Annotations:
Amendments:
F10
Substituted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s. 5, S.I. No. 652 of 2004.
F11
Substituted (1.02.2007) by Maternity Protection Act 1994 (Extension of Periods of Leave) Order 2006 (S.I. No. 51 of 2006), art. 10(a) and (b), in force as per art. 2.
F12
Inserted (1.08.2016) by Paternity Leave and Benefit Act 2016 (11/2016), 34(b)(i), S.I. No. 435 of 2016.
F13
Substituted (1.08.2016) by Paternity Leave and Benefit Act 2016 (11/2016), 34(b)(ii), S.I. No. 435 of 2016.
Editorial Notes:
E13
Power pursuant to section exercised (1.02.2006) by Maternity Protection Act 1994 (Extension of Periods of Leave) Order 2006 (S.I. No. 51 of 2006), in force as per art. 2.
E14
Previous affecting provision: power pursuant to section exercised (8.02.2001) by Maternity Protection Act, 1994 (Extension of Periods of Leave) Order 2001 (S.I. No. 29 of 2001); revoked (18.10.2004) by Maternity Protection Act 1994 (28/2004), s. 26, S.I. No. 652 of 2004.
E15
Previous affection provision: subs. (1)(a) and (b) substituted (1.02.2006) by Maternity Protection Act 1994 (Extension of Periods of Leave) Order 2006 (S.I. No. 51 of 2006), art. 6, in force as per art. 2; superseded by art. 10 of the same instrument above.
E16
Previous affecting provision: subs. (1) substituted (8.02.2001) by Maternity Protection Act 1994 (Extension of Periods of Leave) Order 2001 (S.I. No. 29 of 2001), art. 6, in force as per art. 2); revoked (18.10.2004) by Maternity Protection Act 1994 (28/2004), s. 26, S.I. No. 652 of 2004.
Termination of additional maternity leave in event of sickness of mother.
14A.—(1) If, at any time—
(a) during the last 4 weeks of maternity leave whether or not part of such leave is postponed under section 14B and where, in accordance with section 14(4), an employee has, or is deemed under section 14B(3) to have, notified her employer, or caused her employer to be notified, of her intention to take additional maternity leave, or
(b) during the additional maternity leave whether or not such leave or part of it is postponed under section 14B,
an employee who is sick wishes to terminate the additional maternity leave, she may request in writing (or cause a written request to be submitted to) her employer to terminate the additional maternity leave.
(2) An employer who receives a request under subsection (1) may agree to terminate the additional maternity leave of the employee concerned and, if the employer does so, the additional maternity leave shall terminate on a date agreed by the employee and the employer that is not earlier than the date of the commencement of the employee’s sickness and not later than the date on which the additional maternity leave would have ended in accordance with the notification given by the employee to the employer under section 14(4) or 14B(8), as the case may be.
(3) An employer who receives a request under subsection (1) shall notify the employee concerned in writing of the employer’s decision in relation to the request as soon as reasonably practicable following the receipt of it.
(4) Where the additional maternity leave of an employee is terminated under this section—
(a) the absence from work of the employee due to sickness following such termination shall be treated in the same manner as any absence from work of the employee due to sickness, and
(b) the employee shall not be entitled to the additional maternity leave or the part of it not taken by her at the date of such termination.]
F15[(5) A reference in subsection (1) to the last 4 weeks of maternity leave shall, in the case of an employee who takes transferred paternity leave, be construed as a reference to the last 2 weeks of maternity leave and the period of that transferred paternity leave.]
Annotations:
Amendments:
F14
Inserted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s.6, S.I. No. 652 of 2004.
F15
Inserted (1.08.2016) by Paternity Leave and Benefit Act 2016 (11/2016), 34(c), S.I. No. 435 of 2016.
Postponement of maternity leave in event of hospitalisation of child.
14B.—(1) Subject to subsection (2), an employee who is on maternity leave or is entitled to, or is on, additional maternity leave may, if the child in connection with whose birth she is on, or is entitled to, that leave (in this section referred to as ‘the child’) is hospitalised, request in writing (or cause a written request to be submitted to) her employer to postpone—
(a) part of the maternity leave,
(b) part of the maternity leave and the additional maternity leave, or
(c) the additional maternity leave or part of it.
as may be appropriate, in accordance with this section.
(2) An employee may make a request under paragraph (a) or (b) of subsection (1) to postpone part of her maternity leave with effect from a date she selects only if the period of maternity leave taken by her on that date is not less than 14 weeks and not less than 4 of those weeks are after the end of the week of confinement.
(3) Notwithstanding the fact that an employee who is on maternity leave has not in accordance with section 14(4) notified her employer in writing (or caused her employer to be so notified) of her intention to take additional maternity leave, she shall be deemed, for the purposes of making a request under paragraph (b) or (c) of subsection (1), to have complied with section 14(4).
(4) An employer who receives a request under subsection (1) may agree to postpone the leave concerned and, if the employer does so—
(a) the employee concerned shall return to work on a date agreed by her and the employer that is not later than the date on which the leave concerned is due to end in accordance with the notification given, or deemed under subsection (3) to have been given, by the employee to the employer under section 9or 14, as the case may be,
(b) the leave concerned shall be postponed with effect from the date agreed under paragraph (a), and
(c) the employee concerned shall be entitled to—
(i) the part of the maternity leave,
(ii) the part of the maternity leave and the additional maternity leave, or
(iii) the additional maternity leave or the part of it,
as the case may be, not taken by her by reason of the postponement (in this section referred to as ‘resumed leave’) in accordance with regulations made under this section by the Minister to be taken in one continuous period commencing not later than 7 days after the discharge of the child from hospital.
(5) An employer who receives a request under subsection (1) shall notify the employee concerned in writing of the employer’s decision in relation to the request as soon as reasonably practicable following the receipt of it.
(6) Where, following the postponement of leave under this section, an employee returns to work in accordance with subsection (4)(a) and during the period of the postponement she is absent from work due to sickness, the employee shall be deemed to commence resumed leave on the first day of such absence unless she notifies her employer in writing (or causes her employer to be so notified) as soon as reasonably practicable that she does not wish to commence such leave and, following such notification—
(a) the absence from work of the employee due to sickness shall be treated in the same manner as any absence from work of the employee due to sickness, and
(b) the employee shall not be entitled to the resumed leave.
(7) Without prejudice to the generality of subsection (4), regulations under this section may make provision in relation to either or both of the following matters:
(a) the maximum period of postponement of leave under this section, and
(b) the evidence to be furnished by an employee to her employer of the hospitalisation, and the discharge from hospital, of the child.
(8) Entitlement to resumed leave shall, subject to subsection (10), be subject to an employee having notified her employer in writing (or caused her employer to be so notified) as soon as reasonably practicable but not later than the day on which the leave begins of her intention to commence such leave.
(9) A notification under subsection (8) may be revoked by a further notification in writing given by or on behalf of the employee concerned to her employer within the period specified in that subsection for the giving of the notification concerned.
(10) An employer may, at the discretion of the employer, waive the right to receive a notification in accordance with subsection (8).
(11) Where an employee’s leave is postponed under this section—
(a) subject to paragraphs (b) and (c), the employee shall comply with subsection (1A), in lieu of subsection (1), of section 28,
(b) the employee shall not, in relation to returning to work under subsection (4)(a), be required to comply with section 28, and
(c) the employee shall, if deemed under subsection (6) to be on resumed leave, comply with subsection (1B), in lieu of subsection (1) or (1A), of section 28.]
Annotations:
Amendments:
F16
Inserted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s. 7, S.I. No. 652 of 2004.
Modifications (not altering text):
C5
Application of section affected (18.10.2004) by Maternity Protection (Postponement of Leave) Regulations 2004 (S.I. No. 655 of 2004), regs. 3 and 4, in force as per reg. 1(2).
3. The maximum period of postponement of leave under section 14B or 16B of the Principal Act is 6 months.
4. The evidence to be furnished by an employee or an employed father to her or his employer, if so requested by the employer, for the purposes of section 14B or 16B, as the case may be, of the Principal Act shall be—
(a) a letter or other appropriate document from the hospital in which the child concerned is hospitalised confirming the hospitalisation, and
(b) a letter or other appropriate document from the hospital concerned or the child’s medical practitioner confirming that the child has been discharged from hospital and the date of that discharge.
Editorial Notes:
E17
Power pursuant to section exercised (18.10.2004) by Maternity Protection (Postponement of Leave) Regulations 2004 (S.I. No. 655 of 2004).
Right to time off from work for antenatal or post-natal care.
15.—(1) For the purpose of receiving ante-natal or post-natal care or both, an employee shall be entitled to time off from her work, without loss of pay, in accordance with regulations made under this section by the Minister.
(2) Without prejudice to the generality of subsection (1), regulations under this section may make provision in relation to all or any of the following matters—
(a) the amount of time off to which an employee shall be entitled under this section;
(b) the terms or conditions relating to such time off;
(c) the notice to be given in advance by an employee so entitled to her employer (including any circumstances in which such notice need not be given);
(d) the evidence to be furnished by an employee so entitled to her employer of any appropriate medical or related appointment.
Annotations:
Editorial Notes:
E18
Power pursuant to section exercised (30.01.1995) by Maternity Protection (Time Off For Ante-Natal and Post-Natal Care) Regulations 1995 (S.I. No. 18 of 1995).
Entitlement to time off from work to attend ante-natal classes.
15A.—(1) Subject to subsection (3), a pregnant employee shall be entitled to time off from her work, without loss of pay, in accordance with regulations made under this section by the Minister, for the purpose of attending one set of ante-natal classes (other than the last 3 classes in such a set) and those classes may be attended by her during one or more pregnancies.
(2) Subject to subsection (3), an expectant father of a child (if he is employed under a contract of employment) shall be entitled once only to time off from his work, without loss of pay, in accordance with regulations made under this section by the Minister, for the purpose of attending the last 2 ante-natal classes in a set of such classes attended by the expectant mother of their child before the birth of the child.
(3) Subsection (1) or (2) shall not apply—
(a) to a member of the Defence Forces who is—
(i) on active service within the meaning of section 5 of the Defence Act 1954 or deemed to be on active service within the meaning of section 4(1) of the Defence (Amendment) (No. 2) Act 1960,
(ii) engaged in operational duties at sea,
(iii) engaged in operations in aid of the civil power,
(iv) engaged in training that is directly associated with any of the activities referred to in subparagraphs (i), (ii) and (iii) of this paragraph, or
(v) engaged in any other duty outside the State,
(b) if the Chief of Staff of the Defence Forces in exceptional circumstances so directs, to a member of the Defence Forces who is required to perform a duty which is, in the opinion of the Chief of Staff of the Defence Forces, of a special or urgent nature for so long as the member is performing the duty,
(c) to a member of the Garda Síochána who is on the direction, or with the consent, of the Commissioner of the Garda Síochána serving outside the State performing duties of a police character or advising others on, or monitoring them in, the performance of such duties or any related duties for so long as the member is so serving, and
(d) if the Commissioner of the Garda Síochána in exceptional circumstances so directs, to a member of the Garda Síochána who is required to perform a duty which is, in the opinion of the Commissioner of the Garda Síochána, of a special or urgent nature for so long as the member is performing the duty.
(4) Without prejudice to the generality of subsections (1) and (2), regulations under this section may make provision in relation to all or any of the following matters:
(a) the amount of time off to be allowed for attendance at ante-natal classes;
(b) the terms or conditions relating to such time off;
(c) the notice to be given in advance by a pregnant employee or an expectant father entitled to time off under this section to her or his employer;
(d) the evidence to be furnished by a pregnant employee or an expectant father so entitled to her or his employer of ante-natal classes that she or he is to attend.]
Annotations:
Amendments:
F17
Inserted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s. 8, S.I. No. 652 of 2004.
Editorial Notes:
E19
Power pursuant to section exercised (18.10.2004) by Maternity Protection (Time Off For Ante-Natal Classes) Regulations 2004 (S.I. No. 653 of 2004).
Entitlement to time off or reduction of working hours for breastfeeding.
15B.—(1) An employee who is breastfeeding shall be entitled, without loss of pay, at the option of her employer to either—
(a) time off from her work for the purpose of breastfeeding in the workplace in accordance with regulations made under this section by the Minister where facilities for breastfeeding are provided in the workplace by her employer, or
(b) a reduction of her working hours in accordance with regulations made under this section by the Minister for the purpose of breastfeeding otherwise than in the workplace.
(2) An employer shall not be required to provide facilities for breastfeeding in the workplace if the provision of such facilities would give rise to a cost, other than a nominal cost, to the employer.
(3) Without prejudice to the generality of subsection (1), regulations under this section may make provision in relation to all or any of the following matters:
(a) the amount of time off and the number and frequency of breastfeeding breaks to which an employee is entitled under paragraph (a) of that subsection;
(b) the reduction of working hours to which an employee is entitled under paragraph (b) of that subsection;
(c) the terms or conditions relating to time off under paragraph (a), or to a reduction of working hours under paragraph (b), of that subsection;
(d) the notice to be given in advance by an employee to her employer in relation to the proposed exercise by her of her entitlement under this section:
(e) the evidence to be furnished by such an employee to her employer in relation to the date of confinement.
(4) If an employee who has exercised her entitlement under subsection (1) ceases to breastfeed, she shall, at the earliest practical time, notify her employer in writing that she has so ceased.
(5) In this section ‘breastfeeding’ means breastfeeding a child or expressing breast milk and feeding it to a child immediately or storing it for the purpose of feeding it to the child at a later time.]
Annotations:
Amendments:
F18
Inserted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s. 9, S.I. No. 652 of 2004.
Editorial Notes:
E20
Power pursuant to section exercised (18.10.2004) by Maternity Protection (Protection of Mothers Who Are Breastfeeding) Regulations 2004 (S.I. No. 654 of 2004).
Entitlement of employed father to leave on death of mother.
16.—F19[(1) If a woman who has been delivered of a living child (in this section referred to as ‘the mother’) dies at any time before the expiry of the F20[fortieth week] following the week of her confinement, the father of the child (if he is employed under a contract of employment) shall be entitled in accordance with this section F21[and subject to subsection (10)] to leave from his employment for a period ending as follows—
(a) if the mother dies before the expiry of the F20[twenty-fourth week] following the week of her confinement, the period ends, subject to section 16B, at the end of that F20[twenty-fourth week], and
(b) if the mother dies at any time after the expiry of that F20[twenty-fourth week], the period ends, subject to sections 16A and 16B, at the end of theF20[fortieth week] following the week of her confinement.]
(2) Entitlement to leave under subsection (1) shall be subject to the father—
(a) notifying his employer in writing (or causing his employer to be so notified) not later than the day on which his leave begins of the death of the mother, of his intention to take leave under subsection (1) and of the length of the leave to which he believes he is so entitled; and
(b) if requested by his employer, causing his employer to be supplied, as soon as is reasonably practicable, with a copy of the death certificate made in respect of the mother and of the birth certificate in respect of the child.
F19[(3) F22[Subject to subsection (10) and section 16B], the period of leave under subsection (1) shall commence within 7 days of the mother’s death; and in this section and sections 16A and 16B—
(a) a period of leave which ends as mentioned in paragraph (a) of subsection (1) is referred to as ‘subsection (1)(a) leave’, and
(b) a period of leave which ends as mentioned in paragraph (b) of that subsection is referred to as ‘subsection (1)(b) leave’.
(4) A father who has taken subsection (1)(a) leave shall, if he so wishes, be entitled to further leave from his employment for a maximum period of—
(a) F20[16 consecutive weeks] commencing immediately after the end of his subsection (1) (a) leave F21[or, where applicable, paternity leave under section 13(1) of the Paternity Leave and Benefit Act 2016], or
(b) F20[16 weeks], all or part of which is postponed in accordance with section 16B, commencing either in accordance with that section or immediately after the end of his subsection (1)(a) leave F21[or, where applicable, paternity leave under section 13(1) of the Paternity Leave and Benefit Act 2016],
as may be appropriate.]
(5) F19[Subject to section 16B, entitlement to further leave under subsection (4)] shall be subject to the father having notified in writing his employer (or caused his employer to be so notified) in accordance with subsection (6) of his intention to take such leave.
(6) Notification under subsection (5) shall be given either at the same time as the notification under subsection (2) (a) or (if it is later) not later than four weeks before the date which would have been the father’s expected date of return to work under Part IV if he had not taken the further leave F22[subsection (4) or, where he takes paternity leave under section 13(1) of the Paternity Leave and Benefit Act 2016, the date on which the further leave is, under subsection (4), to commence.]
(7) A notification under this section may be revoked by a further notification in writing given by or on behalf of the father to his employer—
(a) if it relates to subsection (1) (a) leave or subsection (1) (b) leave, not later than the day on which the leave is due to begin; and
(b) if it relates to leave under subsection (4), not later than the latest date on which, under subsection (6), the notification which is to be revoked could have been given.
(8) The Minister may by order, made with the consent of the Minister for Social Welfare and with the consent of the Minister for Finance, amend subsections (1) and (4)F21[and paragraphs (a) and (b) of subsection (10)] so as to extend the periods mentioned in F22[those subsections or paragraphs].
(9) Any reference in this section to the week of the mother’s confinement is a reference to the week in which fell the date of her confinement.
F21[(10) Where, on the date on which a person becomes entitled under subsection (1) to leave under that subsection, the person is on paternity leave, this section and sections 16A and 16B shall apply to the person subject to the following modifications and any other necessary modifications:
(a) where the person is entitled to subsection (1)(a) leave, the leave shall commence immediately after the end of the paternity leave and, subject to section 16B, end at the end of the twenty-fourth week following the end of the paternity leave;
(b) where the person is entitled to subsection (1)(b) leave, the leave shall commence immediately after the end of the paternity leave and, subject to sections 16A and 16B, end at the end of the fortieth week following the end of the paternity leave;
(c) a reference in this section and sections 16A and 16B to—
(i) subsection (1) (a) leave shall be deemed to include a reference to a period of leave to which paragraph (a) applies, and
(ii) subsection (1) (b) leave shall be deemed to include a reference to a period of leave to which paragraph (b) applies.]
Annotations:
Amendments:
F19
Substituted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s. 10, S.I. No. 652 of 2004.
F20
Substituted (1.02.2007) by Maternity Protection Act 1994 (Extension of Periods of Leave) Order 2006 (S.I. No. 51 of 2006), art. 11(a) and (b), in force as per art. 2.
F21
Inserted (1.08.2016) by Paternity Leave and Benefit Act 2016 (11/2016), 34(d)(i), (iii), (v)(I), (vi), S.I. No. 435 of 2016.
F22
Substituted (1.08.2016) by Paternity Leave and Benefit Act 2016 (11/2016), 34(d)(ii), (iv), (v)(II), S.I. No. 435 of 2016.
F23
Substituted by Children and Family Relationships Act 2015 (9/2015), s. 176(b), not commenced as of date of revision.
Modifications (not altering text):
C6
Prospective affecting provision: subss. (1), (2), (4)-(7) amended by Children and Family Relationships Act 2015 (9/2015), s. 176(b), not commenced as of date of revision.
Entitlement of employed father or other parent, as the case may be, to leave on death of mother.
16.—F19[(1) If a woman who has been delivered of a living child (in this section referred to as ‘the mother’) dies at any time before the expiry of the F20[fortieth week] following the week of her confinement, the F23[father or other parent, as the case may be,] of the child (if he is employed under a contract of employment) shall be entitled in accordance with this section to leave from his employment for a period ending as follows—
…]
(2) Entitlement to leave under subsection (1) shall be subject to the F23[father or other parent, as the case may be,]—
…
F19[(4) A F23[father or other parent, as the case may be,] who has taken subsection (1)(a) leave shall, if he so wishes, be entitled to further leave from his employment for a maximum period of—
…]
(5) F19[Subject to section 16B, entitlement to further leave under subsection (4)] shall be subject to the F23[father or other parent, as the case may be,] having notified in writing his employer (or caused his employer to be so notified) in accordance with subsection (6) of his intention to take such leave.
(6) Notification under subsection (5) shall be given either at the same time as the notification under subsection (2) (a) or (if it is later) not later than four weeks before the date which would have been the F23[the father’s or the other parent’s] expected date of return to work under Part IV if he had not taken the further leave under subsection (4).
(7) A notification under this section may be revoked by a further notification in writing given by or on behalf of the F23[father or other parent, as the case may be,] to his employer—
…
C7
Functions transferred and references to “Department of Finance” and “Minister for Finance” construed (29.07.2011) by Finance (Transfer of Departmental Administration and Ministerial Functions) Order 2011 (S.I. No. 418 of 2011), arts. 2, 3, 5 and sch. 1 part 2, in effect as per art. 1(2), subject to transitional provisions in arts. 6-9.
2. (1) The administration and business in connection with the performance of any functions transferred by this Order are transferred to the Department of Public Expenditure and Reform.
(2) References to the Department of Finance contained in any Act or instrument made thereunder and relating to the administration and business transferred by paragraph (1) shall, on and after the commencement of this Order, be construed as references to the Department of Public Expenditure and Reform.
3. The functions conferred on the Minister for Finance by or under the provisions of —
(a) the enactments specified in Schedule 1, and
(b) the statutory instruments specified in Schedule 2,
are transferred to the Minister for Public Expenditure and Reform.
…
5. References to the Minister for Finance contained in any Act or instrument under an Act and relating to any functions transferred by this Order shall, from the commencement of this Order, be construed as references to the Minister for Public Expenditure and Reform.
…
E21
Power pursuant to section exercised (1.02.2006) by Maternity Protection Act 1994 (Extension of Periods of Leave) Order 2006 (S.I. No. 51 of 2006), in force as per art. 2.
E22
Previous affecting provision: subs. (1) amended (1.02.2006) by Maternity Protection Act 1994 (Extension of Periods of Leave) Order 2006 (S.I. No. 51 of 2006), art. 7, in force as per art. 2; superseded by art. 11 of the same instrument above.
E23
Previous affecting provision: power pursuant to section exercised (8.02.2001) by Maternity Protection Act, 1994 (Extension of Periods of Leave) Order 2001 (S.I. No. 29 of 2001); revoked (18.10.2004) by Maternity Protection (Amendment) Act 1994 (28/2004), s. 26, S.I. No. 652 of 2004.
E24
Previous affecting provision: subs. (1) substituted (8.02.2001) by Maternity Protection Act 1994 (Extension of Periods of Leave) Order 2001 (S.I. No. 29 of 2001), art. 7, in force as per art. 2); revoked (18.10.2004) by Maternity Protection (Amendment) Act 1994 (28/2004), s. 26, S.I. No. 652 of 2004.
Termination of leave in event of sickness of father.
16A.—(1) If, at any time—
(a) during the last 4 weeks of subsection (1)(a) leave, whether or not such leave or part of it is postponed under section 16B and where, in accordance with section 16(6), a father has, or is deemed under section 16B(2) to have, notified his employer, or caused his employer to be notified, of his intention to take further leave under section 16(4), or
(b) during subsection (1)(b) leave or a period of further leave under section 16(4), whether or not such leave or a part of it is postponed under section 16B,
a father who is sick wishes to terminate his subsection (1)(b) leave or a period of further leave under section 16(4), as the case may be, he may request in writing (or cause a written request to be submitted to) his employer to terminate that leave.
(2) An employer who receives a request under subsection (1) may agree to terminate the leave concerned of the father concerned and, if the employer does so, the leave concerned shall terminate on a date agreed by the father and the employer that is not earlier than the date of the commencement of the father’s sickness and not later than the date on which the leave concerned would have ended in accordance with the notification given by the father to the employer under subsection (2)(a) or (6) of section 16 or section 16B(7), as the case may be.
(3) An employer who receives a request under subsection (1) shall notify the father concerned in writing of the employer’s decision in relation to the request as soon as reasonably practicable following the receipt of it.
(4) Where the leave of a father is terminated under this section—
(a) the absence from work of the father due to sickness following such termination shall be treated in the same manner as any absence from work of the father due to sickness, and
(b) the father shall not be entitled to the subsection (1)(b) leave or further leave under section 16(4), as the case may be, or the part of such leave not taken by him at the date of such termination.]
Annotations:
Amendments:
F24
Inserted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s. 11, S.I. No. 652 of 2004.
F25
Substituted by Children and Family Relationships Act 2015 (9/2015), s. 176(c), not commenced as of date of revision.
Modifications (not altering text):
C8
Prospective affecting provision: section amended by Children and Family Relationships Act 2015 (9/2015), s. 176(c), not commenced as of date of revision.
F24[Termination of leave in event of sickness of F25[father or other parent].
16A.—(1) If, at any time—
(a) during the last 4 weeks of subsection (1)(a) leave, whether or not such leave or part of it is postponed under section 16B and where, in accordance with section 16(6), a F25[father or other parent] has, or is deemed under section 16B(2) to have, notified his employer, or caused his employer to be notified, of his intention to take further leave under section 16(4), or
(b) during subsection (1)(b) leave or a period of further leave under section 16(4), whether or not such leave or a part of it is postponed under section 16B,
a F25[father or other parent] who is sick wishes to terminate his subsection (1)(b) leave or a period of further leave under section 16(4), as the case may be, he may request in writing (or cause a written request to be submitted to) his employer to terminate that leave.
(2) An employer who receives a request under subsection (1) may agree to terminate the leave concerned of the F25[father or other parent] concerned and, if the employer does so, the leave concerned shall terminate on a date agreed by the F25[father or other parent] and the employer that is not earlier than the date of the commencement of F25[the father’s sickness or the other parent’s sickness] and not later than the date on which the leave concerned would have ended in accordance with the notification given by the F25[father or other parent] to the employer under subsection (2)(a) or (6) of section 16 or section 16B(7), as the case may be.
(3) An employer who receives a request under subsection (1) shall notify the F25[father or other parent] concerned in writing of the employer’s decision in relation to the request as soon as reasonably practicable following the receipt of it.
(4) Where the leave of a F25[father or other parent] is terminated under this section—
(a) the absence from work of the F25[father or other parent] due to sickness following such termination shall be treated in the same manner as any absence from work of the F25[father or other parent] due to sickness, and
(b) the F25[father or other parent] shall not be entitled to the subsection (1)(b) leave or further leave under section 16(4), as the case may be, or the part of such leave not taken by him at the date of such termination.]
Postponement of leave under section 16 in event of hospitalisation of child.
16B.—(1) A father who is entitled to, or is on, leave under section 16 may, if the child in connection with whose birth he is entitled to, or is on, that leave (in this section referred to as ‘the child’) is hospitalised, request in writing (or cause a written request to be submitted to) his employer to postpone—
(a) his subsection (1)(a) leave or part of such leave,
(b) his subsection (1)(a) leave or part of such leave and a period of further leave under section 16(4),
(c) his subsection (1)(b) leave or a period of further leave under section 16(4), as the case may be, or part of such leave, as may be appropriate, in accordance with this section.
(2) Notwithstanding the fact that a father who is on subsection (1)(a) leave has not in accordance with section 16(6) notified his employer in writing (or caused his employer to be so notified) of his intention to take further leave under section 16(4), he shall be deemed, for the purposes of making a request under paragraph (b) or (c) of subsection (1), to have complied with section 16(6).
(3) An employer who receives a request under subsection (1) may agree to postpone the leave concerned and, if the employer does so—
(a) the father concerned shall continue to work, or return to work on a date agreed by him and the employer that is not later than the date on which the leave concerned is due to end in accordance with the notification given, or deemed under subsection (2) to have been given, by the father to the employer under section 16, as may be appropriate,
(b) the leave concerned shall be postponed or postponed with effect from the date agreed under paragraph (a), as may be appropriate, and
(c) the father concerned shall be entitled to—
(i) the subsection (1)(a) leave or the part of such leave,
(ii) the subsection (1)(a) leave or the part of such leave and the period of further leave under section 16(4).
(iii) the subsection (1)(b) leave or the period of further leave under section 16(4), as the case may be, or the part of such leave,
as the case may be, not taken by him by reason of the postponement (in this section referred to as ‘resumed leave’) in accordance with regulations made under this section by the Minister to be taken in one continuous period commencing not later than 7 days after the discharge of the child from hospital.
(4) An employer who receives a request under subsection (1) shall notify the father concerned in writing of the employer’s decision in relation to the request as soon as reasonably practicable following the receipt of it.
(5) Where, following the postponement of leave under this section, a father returns to work in accordance with subsection (3)(a) and during the period of the postponement he is absent from work due to sickness, the father shall be deemed to commence resumed leave on the first day of such absence unless he notifies his employer in writing (or causes his employer to be so notified) as soon as reasonably practicable that he does not wish to commence such leave and, following such notification—
(a) the absence from work of the father due to sickness shall be treated in the same manner as any absence from work of the father due to sickness, and
(b) the father shall not be entitled to the resumed leave.
(6) Without prejudice to the generality of subsection (3), regulations under this section may make provision in relation to either or both of the following matters:
(a) the maximum period of postponement of leave under this section, and
(b) the evidence to be furnished by a father to his employer of the hospitalisation, and the discharge from hospital, of the child.
(7) Entitlement to resumed leave shall, subject to subsection (9), be subject to a father having notified his employer in writing (or causing his employer to be so notified) as soon as reasonably practicable but not later than the day on which the leave begins of his intention to commence such leave.
(8) A notification under subsection (7) may be revoked by a further notification in writing given by or on behalf of the father concerned to his employer within the period specified in that subsection for the giving of the notification concerned.
(9) An employer may, at the discretion of the employer, waive the right to receive a notification in accordance with subsection (7).
(10) Where a father’s leave is postponed under this section—
(a) subject to paragraphs (b) and (c), the father shall comply with subsection (1A), in lieu of subsection (1), of section 28,
(b) the father shall not, in relation to returning to work under subsection (3)(a), be required to comply with section 28, and
(c) the father shall, if deemed under subsection (5) to be on resumed leave, comply with subsection (1B), in lieu of subsection (1) or (1A), of section 28.]
Annotations:
Amendments:
F26
Inserted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s. 12, S.I. No. 652 of 2004.
F27
Substituted by Children and Family Relationships Act 2015 (9/2015), s. 176(d), not commenced as of date of revision.
Modifications (not altering text):
C9
Prospective affecting provision: section amended by Children and Family Relationships Act 2015 (9/2015), s. 176(d), not commenced as of date of revision.
F26[16B.—(1) A F27[father or other parent] who is entitled to, or is on, leave under section 16 may, if the child in connection with whose birth he is entitled to, or is on, that leave (in this section referred to as ‘the child’) is hospitalised, request in writing (or cause a written request to be submitted to) his employer to postpone—
(a) his subsection (1)(a) leave or part of such leave,
(b) his subsection (1)(a) leave or part of such leave and a period of further leave under section 16(4),
(c) his subsection (1)(b) leave or a period of further leave under section 16(4), as the case may be, or part of such leave, as may be appropriate, in accordance with this section.
(2) Notwithstanding the fact that a F27[father or other parent] who is on subsection (1)(a) leave has not in accordance with section 16(6) notified his employer in writing (or caused his employer to be so notified) of his intention to take further leave under section 16(4), he shall be deemed, for the purposes of making a request under paragraph (b) or (c) of subsection (1), to have complied with section 16(6).
(3) An employer who receives a request under subsection (1) may agree to postpone the leave concerned and, if the employer does so—
(a) the F27[father or other parent] concerned shall continue to work, or return to work on a date agreed by him and the employer that is not later than the date on which the leave concerned is due to end in accordance with the notification given, or deemed under subsection (2) to have been given, by the F27[father or other parent] to the employer undersection 16, as may be appropriate,
(b) the leave concerned shall be postponed or postponed with effect from the date agreed under paragraph (a), as may be appropriate, and
(c) the F27[father or other parent] concerned shall be entitled to—
(i) the subsection (1)(a) leave or the part of such leave,
(ii) the subsection (1)(a) leave or the part of such leave and the period of further leave under section 16(4).
(iii) the subsection (1)(b) leave or the period of further leave under section 16(4), as the case may be, or the part of such leave,
as the case may be, not taken by him by reason of the postponement (in this section referred to as ‘resumed leave’) in accordance with regulations made under this section by the Minister to be taken in one continuous period commencing not later than 7 days after the discharge of the child from hospital.
(4) An employer who receives a request under subsection (1) shall notify the F27[father or other parent] concerned in writing of the employer’s decision in relation to the request as soon as reasonably practicable following the receipt of it.
(5) Where, following the postponement of leave under this section, a F27[father or other parent] returns to work in accordance with subsection (3)(a) and during the period of the postponement he is absent from work due to sickness, the F27[father or other parent] shall be deemed to commence resumed leave on the first day of such absence unless he notifies his employer in writing (or causes his employer to be so notified) as soon as reasonably practicable that he does not wish to commence such leave and, following such notification—
(a) the absence from work of the F27[father or other parent] due to sickness shall be treated in the same manner as any absence from work of the F27[father or other parent] due to sickness, and
(b) the F27[father or other parent] shall not be entitled to the resumed leave.
(6) Without prejudice to the generality of subsection (3), regulations under this section may make provision in relation to either or both of the following matters:
(a) the maximum period of postponement of leave under this section, and
(b) the evidence to be furnished by a F27[father or other parent] to his employer of the hospitalisation, and the discharge from hospital, of the child.
(7) Entitlement to resumed leave shall, subject to subsection (9), be subject to a F27[father or other parent] having notified his employer in writing (or causing his employer to be so notified) as soon as reasonably practicable but not later than the day on which the leave begins of his intention to commence such leave.
(8) A notification under subsection (7) may be revoked by a further notification in writing given by or on behalf of the F27[father or other parent] concerned to his employer within the period specified in that subsection for the giving of the notification concerned.
(9) An employer may, at the discretion of the employer, waive the right to receive a notification in accordance with subsection (7).
(10) Where a F27[the father’s leave or the other parent’s leave] is postponed under this section—
(a) subject to paragraphs (b) and (c), the F27[father or other parent] shall comply with subsection (1A), in lieu of subsection (1), of section 28,
(b) the F27[father or other parent] shall not, in relation to returning to work under subsection (3)(a), be required to comply with section 28, and
(c) the F27[father or other parent] shall, if deemed under subsection (5) to be on resumed leave, comply with subsection (1B), in lieu of subsection (1) or (1A), of section 28.]
C10
Application of section affected (18.10.2004) by Maternity Protection (Postponement of Leave) Regulations 2004 (S.I. No. 655 of 2004), regs. 3 and 4, in force as per reg. 1(2).
3. The maximum period of postponement of leave under section 14B or 16B of the Principal Act is 6 months.
4. The evidence to be furnished by an employee or an employed father to her or his employer, if so requested by the employer, for the purposes of section 14B or 16B, as the case may be, of the Principal Act shall be—
(a) a letter or other appropriate document from the hospital in which the child concerned is hospitalised confirming the hospitalisation, and
(b) a letter or other appropriate document from the hospital concerned or the child’s medical practitioner confirming that the child has been discharged from hospital and the date of that discharge.
Editorial Notes:
E25
Power pursuant to section exercised (18.10.2004) by Maternity Protection (Postponement of Leave) Regulations 2004 (S.I. No. 655 of 2004).
PART III
Leave to Protect Health and Safety of Pregnant Employees, etc.
Annotations:
Editorial Notes:
E26
Redress and appeal procedures for dispute about entitlements under Part provided (1.10.2015) by Workplace Relations Act 2015 (16/2015), ss. 41, 44, sch. 5 part 3 item 1 and sch. 6 part 2 item 6, S.I. No. 410 of 2015.
Health and Safety Leave
Employees to whom Part III applies.
17.—This Part applies to—
(a) pregnant employees;
(b) employees who have recently given birth; and
(c) employees who are breastfeeding.
Leave on health and safety grounds.
18.—(1) If, by regulations under the 1989 Act implementing the 1992 Directive, an employer is required to move an employee to whom this Part applies to other work (whether as a result of a risk assessment or because the employee cannot be required to perform night work), but—
(a) it is not technically or objectively feasible for the employer to move the employee as required by the regulations, or
(b) such a move cannot reasonably be required on duly substantiated grounds, or
(c) the other work to which the employer proposes to move the employee is not suitable for her,
the employee shall be granted leave from her employment under this section.
(2) Where an employee is granted leave under this section, she shall be entitled to receive, on request to her employer, a certificate, in such form as may be determined by regulations—
(a) stating that she has been granted leave for whichever of the reasons in paragraphs (a) to (c) of subsection (1) is appropriate in the circumstances and containing such supplementary information as the regulations may require; and
(b) specifying the date on which the leave began and its expected duration.
(3) For the purposes of subsection (1) (c), other work is suitable for an employee if it is—
(a) of a kind which is suitable in relation to the employee concerned, as an employee to whom this Part applies; and
(b) appropriate for the employee to do in all the circumstances.
(4) For the first 21 days of leave granted to an employee by an employer under this section in any relevant period, the employee shall be entitled to receive from the employer remuneration of an amount determined in accordance with regulations.
(5) Regulations under subsection (2) or subsection (4) shall be made by the Minister after consultation with—
(a) the Minister for Finance;
(b) the Minister for Social Welfare; and
(c) the Minister for Enterprise and Employment.
(6) In subsection (4)“relevant period”, in relation to an employee, means the period beginning with her pregnancy and continuing beyond any confinement resulting from that pregnancy until she ceases to be an employee who has recently given birth or, as the case may be, an employee who is breastfeeding.
(7) Regulations under subsection (4) may provide that such day or days as may be determined under the regulations shall be left out of account in calculating the 21 days referred to in that subsection.
Annotations:
Modifications (not altering text):
C11
Functions transferred and references to “Department of Finance” and “Minister for Finance” construed (29.07.2011) by Finance (Transfer of Departmental Administration and Ministerial Functions) Order 2011 (S.I. No. 418 of 2011), arts. 2, 3, 5 and sch. 1 part 2, in effect as per art. 1(2), subject to transitional provisions in arts. 6-9.
2. (1) The administration and business in connection with the performance of any functions transferred by this Order are transferred to the Department of Public Expenditure and Reform.
(2) References to the Department of Finance contained in any Act or instrument made thereunder and relating to the administration and business transferred by paragraph (1) shall, on and after the commencement of this Order, be construed as references to the Department of Public Expenditure and Reform.
3. The functions conferred on the Minister for Finance by or under the provisions of —
(a) the enactments specified in Schedule 1, and
(b) the statutory instruments specified in Schedule 2,
are transferred to the Minister for Public Expenditure and Reform.
…
5. References to the Minister for Finance contained in any Act or instrument under an Act and relating to any functions transferred by this Order shall, from the commencement of this Order, be construed as references to the Minister for Public Expenditure and Reform.
…
Editorial Notes:
E27
Compliance notice procedure in respect of section provided (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 28(17) and sch. 4, S.I. 410 of 2015.
E28
Power pursuant to subs. (2) exercised (30.01.1995) by Maternity Protection (Health and Safety Leave Remuneration) Regulations 1995 (S.I. No. 20 of 1995).
E29
Power pursuant to subs. (4) exercised (30.01.1995) by Maternity Protection (Health and Safety Leave Certification) Regulations 1995 (S.I. No. 19 of 1995).
Extension of Health and Safety Leave
Ending of leave under section 18 where no change of circumstances.
19.—(1) Subject to subsection (2) and section 20, leave granted to an employee under section 18 shall end—
(a) in the case of leave granted to a pregnant employee, immediately before her maternity leave begins; and
(b) in any other case, on the date on which she ceases to be an employee to whom this Part applies.
(2) Where an employee to whom leave is granted under section 18 is employed under a contract for a fixed term and that term expires before the day which, apart from this subsection, would be the day on which that leave would end, then—
(a) the last day of the leave so granted to her shall be the day on which the term expires; and
(b) nothing in this Part shall affect the termination of the employee’s contract of employment on that day.
Ending of leave under section 18 on change of circumstances.
20.—(1) If an employee to whom leave has been granted under section 18 as being an employee who is breastfeeding ceases breastfeeding, she shall, at the earliest practical time, notify her employer in writing that she has so ceased.
(2) Without prejudice to subsection (1), if, during a period of leave granted to an employee under section 18, the employee becomes aware that her condition is no longer such that she is vulnerable to the risk by virtue of which she was granted the leave, she shall at the earliest practical time notify her employer in writing that she is no longer at risk.
(3) Where an employer receives notification from an employee under subsection (1) or subsection (2), and has no reason to believe that, if the employee returned to work, she would be vulnerable to risk as an employee to whom this Part applies—
(a) the employer shall take all reasonable measures to enable the employee to return to work in the job which she held immediately before the start of her leave and shall then notify her in writing that she can resume work in that job; and
(b) the leave granted to the employee under section 18 shall end seven days after the notification under paragraph (a) is received by her or, if it is earlier, on the day she returns to work.
(4) If, during a period of leave granted to an employee under section 18, her employer—
(a) either takes whatever measures are necessary to ensure that she will no longer be exposed to any risk by virtue of which she was granted the leave or becomes able to move the employee as mentioned in section 18 (1), and
(b) notifies the employee in writing that she can return to work without exposure to that risk or, as the case may be, that other work is available to her which is suitable for her as mentioned in section 18 (3),
the leave granted to the employee under section 18 shall end seven days after the notification under paragraph (b) is received by her or, if it is earlier, on the day she returns to work or, as the case may be, takes up the other work.
PART IV
Employment Protection
Interpretation of Part IV.
21.—(1) In this Part—
“natal care absence”, in relation to an employee, means a period of absence from her work to which the employee is entitled in accordance with regulations under section 15; and
“protective leave” means—
(a) maternity leave;
(b) additional maternity leave;
(c) leave to which a father is entitled under subsection (1) or subsection (4) of section 16; or
(d) leave granted under section 18.
(2) Where protective leave of one description is immediately followed by protective leave of another description, the time on leave shall be treated for the purposes of this Part as one continuous period of protective leave.
F28[(3) Where—
(a) maternity leave,
(b) additional maternity leave, or
(c) leave to which a father is entitled under subsection (1) or (4) of section 16,
or part of such leave is postponed in accordance with section 14B or 16B, as may be appropriate, the time (if any) on leave before such postponement and the time on leave after such postponement shall be treated for the purposes of this Part as separate periods of protective leave.]
Annotations:
Amendments:
F28
Inserted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s.13, S.I. No. 652 of 2004.
F29
Substituted by Children and Family Relationships Act 2015 (9/2015), s. 176(e), not commenced as of date of revision.
Modifications (not altering text):
C12
Prospective affecting provision: subs. (1), definition of “protective leave”, para. (c) and subs. (3)(c) amended by Children and Family Relationships Act 2015 (9/2015), s. 176(e), not commenced as of date of revision.
(c) leave to which a F29[father or other parent] is entitled under subsection (1) or subsection (4) of section 16; or
…
(c) leave to which a F29[father or other parent] is entitled under subsection (1) or (4) of section 16,
Preservation or suspension of certain rights, etc. while on protective leave, etc.
22.—(1) During a period of absence from work by an employee while on—
(a) maternity leave,
(b) subsection (1) (a) leave, as defined in section 16 (3), or
(c) leave granted under section 18,
and during a period of natal care absence, the employee shall be deemed to have been in the employment of the employer and, accordingly, while so absent the employee shall, subject to subsection (6) and section 24, F30[be treated as if she or he had not been so absent]; and such absence shall not affect any right (other than, except in the case of natal care absence, the employee’s right to remuneration during such absence), whether conferred by statute, contract or otherwise, and related to the employee’s employment.
F30[(2) In respect of a period of absence from work by an employee while on—
(a) additional maternity leave,
(b) subsection (1)(b) leave within the meaning of section 16, or
(c) further leave under section 16(4),
the employee shall be deemed to have been in the employment of the employer and accordingly, while so absent the employee shall, subject to section 24, be treated as if she or he had not been so absent; and such absence shall not affect any right or obligation (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 such absence), whether conferred or imposed by statute, contract or otherwise, and related to the employee’s employment.
(2A) In respect of a period of absence from work by an employee while—
(a) attending ante-natal classes in accordance with section 15A, or
(b) breastfeeding in accordance with section 15B,
the employee shall be deemed to have been in the employment of the employer and accordingly, while so absent the employee shall, subject to section 24, be treated as if she or he had not been so absent; and such absence shall not affect any right, whether conferred by statute, contract or otherwise, and related to the employee’s employment.]
(3) Nothing in this section affects—
(a) an employee’s right to be offered suitable alternative employment under section 27; or
(b) an employee’s right to remuneration in accordance with section 18 (4).
(4) A period of absence from work while on protective leave shall not be treated as part of any other leave (including sick leave or annual leave) to which the employee concerned is entitled.
(5) An employee shall be deemed not to be an employed contributor for the purposes of the Social Welfare (Consolidation) Act, 1993, for any contribution week (within the meaning of that Act) in a period of absence from work on protective leave if the employee does not receive any reckonable earnings (within the meaning of that Act) in respect of that week.
(6) Where subsection (1) applies during a period of absence by an employee while she is on leave granted under section 18, nothing in this section shall entitle her to benefits under section 4 of the Holidays (Employees) Act, 1973 in respect of a public holiday (within the meaning of that Act) falling during that period of absence.
Annotations:
Amendments:
F30
Substituted and inserted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s. 14, S.I. No. 652 of 2004.
Editorial Notes:
E31
Holidays (Employees) Act 1973 was repealed (30.09.1997) and replaced by Organisation of Working Time Act 1997 (20/1997), s. 9, sch. 4 and s. 21, S.I. No. 392 of 1997.
Voidance of certain purported terminations of employment, etc.
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;
F31[(bb) any purported termination of an employee’s employment during a period of absence from work to attend ante-natal classes in accordance with section 15A;
(bbb) any purported termination of an employee’s employment during a period of absence from work for breastfeeding in accordance with section 15B;]
(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;
F31[(dd) any notice of termination of an employee’s employment given during a period of absence from work to attend ante-natal classes in accordance with section 15A and expiring subsequent to such a period;
(ddd) any notice of termination of an employee’s employment given during a period of absence from work for breastfeeding in accordance with section 15Band expiring subsequent to such a period;]
F32[(e) any purported suspension from an employee’s employment imposed while the employee is absent from work on protective leave, during a period of natal care absence or during a period of absence from work to attend ante-natal classes in accordance with section 15A or for breastfeeding in accordance with section 15B.]
Annotations:
Amendments:
F31
Inserted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s. 15(a) and (b), S.I. No. 652 of 2004.
F32
Substituted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s. 15(c), S.I. No. 652 of 2004.
Extension of certain notices of termination of employment or of certain suspensions.
24.—Any notice of termination of employment given in respect of an employee or any suspension from employment imposed on an employee—
(a) before the receipt by the employee’s employer of a notification under F33[section 9, 12, 14, 14B, 15, 15A, 15B, 16 or 16B] (or, where appropriate, under section 28), or
(b) before the production for the employer’s inspection of a certificate under section 11,
F34[and due to expire during the employee’s absence from work on protective leave, during a period of natal care absence or during a period of absence from work to attend ante-natal classes in accordance with section 15A or for breastfeeding in accordance with section 15B shall be extended by the period of such absence.]
Annotations:
Amendments:
F33
Substituted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s. 16(a), S.I. No. 652 of 2004.
F34
Substituted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s. 16(b), S.I. No. 652 of 2004.
Provisions regarding periods of probation, training and apprenticeship.
25.—(1) During an employee’s absence from work while on protective leave, being an employee who, starting with F35[the commencement of her or his employment with the employer]—
(a) is on probation in that employment, or
(b) is undergoing training in relation to that employment, or
(c) is employed under a contract of apprenticeship,
the probation, training or apprenticeship shall stand suspended during such absence and shall be completed by the employee F35[on his or her return to work after such absence].
(2) The Minister may by regulations prescribe a period or periods of training in relation to which subsection (1) shall not apply.
Annotations:
Amendments:
F35
Substituted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s. 17, S.I. No. 652 of 2004.
General right to return to work on expiry of protective leave.
26.—(1) Subject to this Part, on the expiry of a period during which an employee was absent from work while on protective leave, the employee shall be entitled to return to work—
(a) F36[with the employer with whom she or he was working immediately before the start of that period or, where during the employee’s absence from work there was a change of ownership of the undertaking in which she or he was employed immediately before her or his absence], with the owner (in this Act referred to as “the successor”) of the undertaking at the expiry of the period of absence,
(b) in the job which the employee held immediately before the start of that period, and
(c) under the contract of employment under which the employee was employed immediately before the start of that 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 which is identical to the contract under which the employee was employed immediately before the start of that period, F37[and (in either case) under terms or conditions —
(i) not less favourable than those that would have been applicable to the employee, and
(ii) that incorporate any improvement to the terms or conditions of employment to which the employee would have been entitled,
if she or he 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 start of the period of F36[her or his absence on protective leave] was not the employee’s normal or usual job, the employee shall be entitled to return to work, either in F36[her or his normal or usual job] or in that job as soon as is practicable without contravention by the employee or the employer of any provision of a statute or instrument made under statute.
(3) In this section “job”, in relation to an employee, means the nature of F36[the work which she or he is employed to do in accordance with her or his contract of employment and the capacity and place in which she or he is so employed].
Annotations:
Amendments:
F36
Substituted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s. 18(a), (c) and (d), S.I. No. 652 of 2004.
F37
Substituted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s. 18(b), S.I. No. 652 of 2004.
Right to suitable alternative work in certain circumstances on return to work.
27.—(1) Where an employee is entitled to return to work in accordance with section 26 but it is not reasonably practicable for the employer or the successor to permit the employee to return to work in accordance with that section, the employee shall, subject to this Part, be entitled to be offered by the employer, the successor or an associated employer suitable alternative work 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) the work required to be done under the contract is of a kind which is suitable in relation to the employee concerned and appropriate for the employee to do in the circumstances; and
F38[(b) the terms or conditions of the contract—
(i) 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 her or his contract of employment immediately before the start of the period of absence from work while on protective leave, and
(ii) incorporate any improvement to the terms or conditions of employment to which the employee would have been entitled if she or he had not been so absent from work during that period.]
(3) For the purposes of this Act one employer shall be taken to be associated with another—
(a) if one is a body corporate of which the other (whether directly or indirectly) has control; or
(b) if both are bodies corporate of which a third person (whether directly or indirectly) has control.
Annotations:
Amendments:
F38
Substituted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s.19, S.I. No. 652 of 2004.
Notification of intention to return to work.
28.—(1) F39[Subject to sections 14B(11) and 16B(10), entitlement to return to work] in accordance with section 26 or to be offered suitable alternative work under section 27 shall be subject to an employee who has been absent from work while on protective leave in accordance with this Act having, not later than four weeks before F39[the date on which she or he expects to return to work], notified in writing (or caused to be so notified) the employer or, where the employee is aware of a change of ownership of the undertaking concerned, the successor, of F39[her or his intention to return to work] and of F39[the date on which she or he expects to return to work].
F40[(1A) Entitlement to return to work in accordance with section 26 or to be offered suitable alternative work under section 27 shall be subject to an employee who has been absent from work on resumed leave within the meaning of section 14B or 16B, as the case may be, having notified in writing (or caused to be so notified) the employer or, where the employee is aware of a change of ownership of the undertaking concerned, the successor, of her or his intention to return to work and of the date on which she or he expects to return to work—
(a) if the period of resumed leave concerned is 4 weeks or less—
(i) at the same time as the relevant notification is given by the employee under section 14B(8) or 16B(7), as the case may be, or
(ii) if the employer waives the right to receive such notification, not later than the day on which the employee expects to return to work,
or
(b) if the period of resumed leave concerned is more than 4 weeks, not later than 4 weeks before the date on which the employee expects to return to work.
(1B) Entitlement to return to work in accordance with section 26 or to be offered suitable alternative work under section 27 shall be subject to an employee who has been absent from work and been deemed under subsection (6) of section 14B or subsection (5) of section 16B, as the case may be, to be on resumed leave within the meaning of whichever of those sections is appropriate having, not later than the date on which she or he expects to return to work, notified in writing (or caused to be so notified) the employer or, where the employee is aware of a change of ownership of the undertaking concerned, the successor, of her or his intention to return to work and of the date on which she or he expects to return to work.]
(2) Where, in the opinion of a rights commissioner or the Tribunal, there are reasonable grounds—
F39[(a) for an employee’s failure to give notification under subsection (1), (1A) or (1B), as may be appropriate, or]
(b) for an employee giving such notification otherwise than within the specified time limits,
the rights commissioner or the Tribunal, as the case may be, shall extend the time for giving the notification.
(3) In the absence of reasonable grounds—
F39[(a) failure to give notification under subsection (1), (1A) or (1B), as may be appropriate, or]
(b) the giving of such notification otherwise than within the specified time limits,
are matters that may be taken into account by a rights commissioner, the Tribunal or the Circuit Court in determining the employee’s rights under the 1977 Act, this Act or any other relevant enactment, so far as the remedies of re-instatement, re-engagement or compensation are concerned.
Annotations:
Amendments:
F39
Substituted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s. 20(a) and (c), S.I. No. 652 of 2004.
F40
Inserted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s. 20(b), S.I. No. 652 of 2004.
Postponement of return to work.
29.—Where, because of an interruption or cessation of work at an employee’s place of employment, existing on the date specified in a notification under section 28 given by the employee, it is unreasonable to expect the employee to return to work on the date specified in the notification, 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.
PART V
Resolution of Disputes
Annotations:
Amendments:
F41
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 52(1) and sch. 7 part 1 ref. 6, S.I. No. 410 of 2015, subject to transitional provision in subs. (3).
F42
Repealed (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 8(1) and sch. 2 part 1 ref. 7, S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
Editorial Notes:
E32
Redress and appeal procedures for dispute about entitlements under Act provided (1.10.2015) by Workplace Relations Act 2015 (16/2015), ss. 41, 44, sch. 5 part 3 item 1 and sch. 6 part 2 item 6, S.I. No. 410 of 2015.
Reference of disputes to which Part V applies.
30.—(1) F41[(1) This Part does not apply to a dispute relating to—
(a) the dismissal of an employee, or
(b) a matter that is within the competence of the Authority under the 1989 Act.]
(2) This Part does not apply where the employee is in employment as a member of the Defence Forces and, accordingly, in the following provisions of this Part, “employee” does not include an employee in such employment.
(3) In this Part “the relevant employer”, in relation to an employee, means the employee’s employer or, where appropriate, the successor or an associated employer.
(4) F42[…]
(5) The Minister may make regulations for the purposes of this Part, and in this Part “prescribed” means prescribed by such regulations.
(6) In subsection (1) (a)“dismissal” has the same meaning as in the 1977 Act except that, in applying that definition for the purposes of subsection (1) (a), the expressions “employer” and “contract of employment”, where used in that definition, shall be given the same meanings as in this Act.
Annotations:
Amendments:
F41
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 52(1) and sch. 7 part 1 ref. 6, S.I. No. 410 of 2015, subject to transitional provision in subs. (3).
F42
Repealed (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 8(1) and sch. 2 part 1 ref. 7, S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
Editorial Notes:
E33
The Safety, Health and Welfare At Work Act 1989 was repealed (1.09.2005) and replaced by Safety, Health and Welfare At Work Act 2005 (10/2005), s. 4 and sch. 2 pt. 1, S.I. No. 328 of 2005.
E34
Power pursuant to section exercised (18.05.1999) by Maternity Protection (Maximum Compensation) Regulations 1999 (S.I. No. 134 of 1999).
E35
Power pursuant to section exercised (30.01.1995) by Maternity Protection (Disputes and Appeals) Regulations 1995 (S.I. No. 17 of 1995).
Procedure for referral of disputes.
31.—F43[…]
Annotations:
Amendments:
F43
Repealed (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 8(1) and sch. 2 part 1 ref. 7, S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
Editorial Notes:
E36
Power pursuant to subs. (1), ss. 30(5) and 33(2) exercised (30.01.1995) by Maternity Protection (Disputes and Appeals) Regulations 1995 (S.I. No. 17 of 1995).
E37
Previous affecting provision: subs. (1)(a)(iii) amended by Children and Family Relationships Act 2015 (9/2015), s. 176(f), not commenced; section deleted as per F-note above.
E38
Previous affecting provision: subs. (1)(a) substituted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s. 21, S.I. No. 652 of 2004; section deleted as per F-note above.
Decision under Workplace Relations Act 2015
32. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a dispute between an employee and the relevant employer relating to any entitlement of the employee under Part II, III or IV (or any matter arising out of or related to such entitlement) may include such directions to the parties to the dispute as the adjudication officer considers necessary or expedient for the resolution of the dispute, and if the decision is in favour of the employee then, without prejudice to the power to give such directions, the adjudication officer may order—
(a) the grant of leave to the employee for such period as may be so specified,
(b) an award of compensation (in favour of the employee to be paid by the relevant employer) of such amount, not exceeding 20 weeks’ remuneration in respect of the employee’s employment calculated in such manner as may be prescribed, as the adjudication officer considers just and equitable having regard to all of the circumstances, or
(c) both such grant and such award.
(2) A decision of the Labour Court under section 44 of the Workplace Relations Act 2015 on appeal from a decision referred to in subsection (1) may include such directions to the parties to the appeal as the Labour Court considers necessary or expedient for the resolution of the matter, and if the decision is in favour of the employee then, without prejudice to the power to give such directions, the Labour Court may order—
(a) the grant of leave for such period as may be so specified,
(b) an award of compensation (in favour of the employee to be paid by the relevant employer) of such amount, not exceeding 20 weeks’ remuneration in respect of the employee’s employment calculated in such manner as may be prescribed, as the Labour Court considers just and equitable having regard to all of the circumstances, or
(c) both such grant and such award.
(3) In this section ‘remuneration’ includes allowances in the nature of pay and benefits in lieu of or in addition to pay.]
Annotations:
Amendments:
F44
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 52(1) and sch. 7 part 1 ref. 6, S.I. No. 410 of 2015, subject to transitional provision in subs. (3).
Editorial Notes:
E39
Power pursuant to subs. (3) and s. 30(5) exercised (18.05.1999) by Maternity Protection (Maximum Compensation) Regulations 1999 (S.I. No. 134 of 1999).
Appeal
33.—F45[…]
Annotations:
Amendments:
F45
Repealed (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 8(1) and sch. 2 part 1 ref. 7, S.I. No. 410 of 2015, subject to transitional provision in subs. (2).
Editorial Notes:
E40
Power pursuant to subs. (2) and ss. 30(5) and 31(1) exercised (30.01.1995) by Maternity Protection (Disputes and Appeals) Regulations 1995 (S.I. No. 17 of 1995).
Burden of proof.
33A.—(1) In this section—
‘discrimination’ means—
(a) a failure, which gives rise to a dispute, to comply with a provision of Parts II to IV, or
(b) an unfair dismissal (within the meaning of the 1977 Act) of an employee resulting wholly or mainly from—
(i) the employee’s pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith, or
(ii) the exercise or proposed exercise by the employee of the right under this Act to any form of protective leave or natal care absence, within the meaning of Part IV, or to time off from work to attend ante-natal classes in accordance with section 15A (inserted by section 8 of the Maternity Protection (Amendment) Act 2004), or to time off from work or a reduction of working hours for breastfeeding in accordance with section 15B (inserted by section 9 of the Maternity Protection (Amendment) Act 2004);
‘employee’, in relation to proceedings under the 1977 Act, has the meaning assigned to it by that Act;
‘indirect discrimination’ shall be construed in accordance with section 22 (as amended by Regulation 4(b) of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001)) of the Employment Equality Act 1998 insofar as that section relates to discrimination on the gender ground within the meaning of that Act;
‘proceedings’ means—
(a) any proceedings under F47[Part 4 of the Workplace Relations Act 2015] before—
(i) a F47[adjudication officer] dealing with a dispute referred to the F47[adjudication officer] by an employee, or
(ii) the F47[Labour Court],
or
(b) any proceedings under the 1977 Act before a F47[adjudication officer], the F47[Labour Court]F48[…] in which a claim is made by an employee for redress under that Act for unfair dismissal on the grounds that the dismissal resulted wholly or mainly from—
(i) the employee’s pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith, or
(ii) the exercise or proposed exercise by the employee of the right under this Act to any form of protective leave or natal care absence, within the meaning of Part IV, or to time off from work to attend ante-natal classes in accordance with section 15A (inserted by section 8 of the Maternity Protection (Amendment) Act 2004), or to time off from work or a reduction of working hours for breastfeeding in accordance with section 15B (inserted by section 9 of the Maternity Protection (Amendment) Act 2004),
and includes any subsequent proceedings, including proceedings on appeal, arising from the claim.
(2) Where in any proceedings facts are established by an employee from which it may be presumed that there has been discrimination or indirect discrimination in relation to him or her, it shall be for the respondent to prove the contrary.
(3) This section is without prejudice to section 6(6) of the 1977 Act or any other enactment or rule of law in relation to the burden of proof in proceedings which may be more favourable to such an employee.
(4) Nothing in this section shall operate to reduce the existing level of protection for employees in relation to the burden of proof in proceedings.
(5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001) are revoked insofar as they apply to proceedings (within the meaning of this section).]
Annotations:
Amendments:
F46
Inserted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s. 22, S.I. No. 652 of 2004.
F47
Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 52(1) and sch. 7 part 1 ref. 6, S.I. No. 410 of 2015, subject to transitional provision in subs. (3).
F48
Deleted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 52(1) and sch. 7 part 1 ref. 6, S.I. No. 410 of 2015, subject to transitional provision in subs. (3).
Provisions applying where employee not permitted to return to work.
40.—(1) This section applies to an employee who, having duly complied with section 28, is entitled under Part IV to return to work but is not permitted to do so by the relevant employer, as defined in section 30 (3), and in this section, in relation to such an employee, “the expected date of return” means F53[the date notified under subsection (1), (1A) or (1B), as may be appropriate, of section 28] as the date on which the employee expected to return to work.
(2) For the purposes of the Redundancy Payments Acts, 1967 to 1991, an employee to whom this section applies who is also an employee to whom those Acts apply shall be deemed to have been dismissed by reason of redundancy, the date of dismissal being deemed to be the expected date of return.
(3) For the purposes of the Minimum Notice and Terms of Employment Act, 1973, the contract of employment of an employee to whom this section applies who is also an employee to whom that Act applies shall be deemed to have been terminated on the expected date of return.
(4) For the purposes of the 1977 Act—
(a) an employee to whom this section applies who is also an employee to whom that Act applies shall be deemed to have been dismissed on the expected date of return; and
(b) the dismissal shall be deemed to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
Annotations:
Amendments:
F53
Substituted (18.10.2004) by Maternity Protection (Amendment) Act 2004 (28/2004), s.25, S.I. No. 652 of 2004.
Protection of employee’s rights on insolvency of employer.
41.—(1) In the Protection of Employees (Employers’ Insolvency) Act, 1984, section 6 (which provides for certain amounts to be paid out of the Redundancy and Employees’ Insolvency Fund) shall be amended in accordance with this section.
(2) In subsection (2) (a), for subparagraph (v) there shall be substituted—
“(v) any amount which an employer is required to pay by virtue of—
(I) a determination under section 8 (1) or 9 (1) or an order under section 10 (2) of the 1977 Act, or
(II) a decision, determination or order under Part V of the Maternity Protection Act, 1994,
and made, in any case, not earlier than the commencement of the relevant period,”.
(3) In subsection (4) (c), after subparagraph (iii) there shall be inserted—
“(iv) A payment shall not be made under this section in respect of an amount to which a decision under Part V of the Maternity Protection Act, 1994, relates unless—
(I) in case an appeal from the decision to the Tribunal is brought under the Part in question, the appeal is withdrawn, or
(II) in case there is no such appeal, the time for bringing such an appeal has expired.
(v) A payment shall not be made under this section in respect of an amount to which a determination under Part V of the Maternity Protection Act, 1994, relates unless—
(I) in case an appeal from the determination is brought to the High Court under the Part in question, the appeal is withdrawn, or
(II) in case there is no appeal, the time for bringing such an appeal has expired.”.
Annotations:
Editorial Notes:
E43
These amendments to Protection of Employees (Employers’ Insolvency) Act 1984, s. 6(2) and (4) remain current but have been amended further. Subs. (2)(a)(v)(II) was superseded (3.12.1998) by an amendment made by Parental Leave Act 1998 (30/1998), s. 26(1) and (2), commenced as per s. 1(2) and was superseded in turn (2.07.2001) by an amendment made by Carer’s Leave Act 2001 (19/2001), s. 30(a), commenced on enactment.
Subs. (4)(c)(iv) and (v) were superseded (3.12.1998) by an amendment made by Parental Leave Act 1998 (30/1998), s. 26(1) and (3), commenced as per s. 1(2) and superseded in turn (2.07.2001) by Carer’s Leave Act 2001 (19/2001), s. 30(b), commenced on enactment.
Cases
Board of Management of Scoil an Chroí Ró Naofa Íosa, Minister for Education and Skills v Helen Donnelly
2019 No. 348 MCA
High Court
2 November 2020
[2021] 32 E.L.R. 78
(Hyland J.)
Introduction
1. This is an appeal by the Minister for Education against a decision of the Employment Appeal Tribunal (the “Tribunal”) of 23 October 2019 whereby it upheld a complaint by nine teachers who, by virtue of the introduction of a circular governing maternity leave in 2013 (Circular 0009/2013 hereafter described as the “2013 Circular”), were obliged to take leave accruing to them during their maternity leave during school closure periods rather than during term time. They objected to this on the basis that the 2013 Circular was introduced when all of them were already pregnant and had notified their schools of their pregnancy. Indeed, one was already on maternity leave at the time of the introduction of the Circular. They argued that their rights existing under the previous circular (Circular 0011/2011, hereafter described as the “2011 Circular”) that allowed such leave to be taken during term time, could not be removed by the 2013 Circular, given that they had an expectation their maternity leave for the extant pregnancies would be governed by the 2011 Circular.
2. The nine teachers lost before the Rights Commissioner but succeeded before the Tribunal on the basis that the new arrangement introduced by the 2013 Circular constituted a breach of s.22(4) of the Maternity Protection Act 1994 as amended (the “1994 Act”).
3. The Minister (who took over the proceedings from the various boards of management) has appealed on the following point of law:
“The correct interpretation of s.22(4) in the case of the nine respondents, teachers employed in recognised schools, and, in particular the question of whether, in the case of such teachers, all periods of school closure qualify as “other leave (including sick leave or annual leave) to which the employee concerned is entitled” for the purpose of the said section”.
*81
4. For the reasons set out in this judgment, I am satisfied that the Tribunal made an error of law in finding that s.22(4) of the 1994 Act was breached and I am accordingly remitting the matter back to the Tribunal.
Jurisdiction of the court
5. This is an appeal on a point of law pursuant to s. 34 of the 1994 Act, which provides as follows:
“34.-(1) …
(2) A party to proceedings before the Tribunal under this Part may appeal to the High Court from a determination of the Tribunal on a point of law.”
6. The ambit of an appeal on a point of law has been comprehensively described in Attorney General v Davis[2018] 2 I.R. 357, following Fitzgibbon v Law Society[2015] 1 I.R. 516, as including errors of law as generally understood, errors such as would give rise to judicial review, procedural errors of some significance, errors in the exercise of discretion that were plainly wrong notwithstanding the latitude inherent in such exercise and errors of fact in very limited circumstances.
Relevant legislative provisions
7. There are four legal instruments potentially relevant to the decision of the Tribunal, two EU Directives and two national implementing provisions. The first is Directive 92/85 of 19 October 1992 (the “Pregnancy Directive”). This Directive was designed to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth. Article 8 deals with maternity leave and identifies that workers are to be entitled to a continuous period of at least 14 weeks’ maternity leave. Article 11 (headed up “Employment rights”) provides in relevant part:
“In order to guarantee workers within the meaning of Art.2 the exercise of their health and safety protection rights as recognised in this article, it shall be provided that:
…
2. in the case referred to in Article 8, the following must be ensured:
(a) the rights connected with the employment contract of workers within the meaning of Article 2, other than those referred to in point (b) below;
(b) maintenance of a payment to, and/or entitlement to an adequate allowance for, workers within the meaning of Article 2.”
8. The Pregnancy Directive was implemented in Ireland by the 1994 Act. Section 22(4) of the 1994 Act, found by the Tribunal to have been breached, prohibits a period of absence from work while on protective leave (which includes maternity leave) from being treated as part of any other leave (including sick leave or annual leave) to which the employee is entitled.
*82
9. The second Directive is Directive 93/104 of 23 November 1993 on the organisation of working time (the “Working Time Directive”).Article 7 provides that Member States should take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks.
10. That was implemented in Ireland by the Organisation of Working Time Act 1997 as amended, which provides at s.19(1) that each worker is entitled to paid annual leave equal to four working weeks for each leave year.
11. In Gómez v Continental Industrias del Caucho SA (C-342/01) [2004] E.C.R. I-2605, the Court of Justice held that the purpose of the entitlement to annual leave is different from that of the entitlement to maternity leave, which protects a woman’s biological condition during and after pregnancy and the special relationship between a woman and her child over the period following pregnancy and childbirth. It concluded that art.7 of the Working Time Directive must be interpreted as meaning that where the dates of a worker’s maternity leave coincide with those of the entire workforce’s annual leave, the requirements of the Directive relating to paid annual leave could not be regarded as met. It further referred to art.11(2)(a) of the Pregnancy Directive and noted that the entitlement to paid annual leave must be ensured in the case of maternity leave. The court went on to refer to art.5(1) of Directive 76/207 on equal treatment, interpreting it as meaning that a worker must be able to take her annual leave during a period other than the period of her maternity leave, even where the period of maternity leave coincides with a general period of annual leave fixed by collective agreement for the entire workforce. The court concluded that the combined effect of the three Directives meant that a worker had to be able to take her annual leave during a period other than the period of her maternity leave, irrespective of when the collective agreement dictated leave should be taken.
12. In fact, this principle had already been identified in Irish law by way of s.22(4) which, as noted above, prohibited a worker’s annual leave being treated as having been taken during maternity leave.
The 2013 Circular
13. The Circular is entitled “Maternity Protection Entitlements for Registered Teachers in Recognised Primary and Post Primary Schools”. It is stated to supersede all previous circulars. Managers of schools are asked to bring it to the attention of all teachers in their employment including those on leave of absence.
14. Under the heading “Statutory Annual Leave/Public Holiday Entitlement”, the Circular provides:
“8.1 In general full-time employees are entitled to 20 days’ annual leave. Employees who work less than full hours are entitled to annual leave on a pro rata basis.
8.2 Any entitlements in respect of public holidays occurring while on maternity leave will be addressed by additional maternity leave.
*83
8.3 These annual leave entitlements are to be taken on existing school closure days that occur in the leave year in question, i.e. both before and after the maternity leave period. Annual leave entitlements are to be taken at a time outside of the period of maternity leave.
8.4 When availing of statutory maternity leave and there are not enough school closure days in the leave year to absorb all annual leave entitlements, it is permitted to take the necessary days immediately before the maternity leave in the same leave year. Alternatively, teachers will be permitted to carry the balance forward to the following leave year but must then take these days during school closures.”
15. I attach as an Annex to this judgment a very helpful worked example jointly provided by the parties in respect of Ms Donnelly, one of the respondent teachers, to allow readers to understand the detail of how the regime introduced by the 2013 Circular altered the position that had previously been in place under the 2011 Circular. In summary, the net effect of the change was to require teachers to take leave accumulated during their maternity leave during school closure periods rather than term time. Understandably, this change was not welcomed by the teachers.
Decision of Tribunal
16. The challenge to the 2013 Circular was first heard and determined by John Walsh, Rights Commissioner on 30 March 2015 against the teachers. The hearing of the appeal against that finding took place on 20 June 2019 before the Tribunal. There had previously been a hearing on 8 May 2019 in relation to time-limits where the Tribunal heard oral evidence from two of the teachers. No oral evidence was given at the hearing on 20 June. The Tribunal referred to counsel for both parties submitting written submissions, case law and making lengthy oral submissions. The arguments of both parties were summarised in bullet point form by the Tribunal. Confusingly, when summarising the teachers’ position, the Tribunal identified, inter alia, the following arguments:
• “S.22 of the OWT protects rights including contractual rights;
• The appellants were entitled to refer to the OWT Act and its provisions although there were no claims brought under that Act because it was their case that there was no compliance with that Act;
• The previous position agreement prior to May 2013 on s.22 was the only way that it was fully implemented by the Department. Otherwise the person taking maternity leave lost out on annual leave because of school closures. The circular prior to May 2013 specifically dealt with S.22.”
17. In fact, s.22 of the Organisation of Working Time Act 1997 deals with the rate at which an employee is paid in respect of a day off and seems to have no relevance to this case. It is true that s.22 refers to s.19 which in turn refers to an *84 employee being entitled to paid annual leave equal to four working weeks in a leave year so perhaps the Tribunal were intending to refer to that section. Nor is it the case that the 2011 Circular referred to s.22 of the 1994 Act, nor indeed s.22 of the Organisation of Working Time Act 1997.
18. Under the summary of the Minister’s arguments, the Tribunal identifies the following:
• “The 15 weeks of school closures were more than adequate to meet the annual leave and public holiday entitlements.
• The closure of the school does not mean annual leave.
• Counsel stated that there was no overlap between maternity leave and annual leave in these cases.”
19. On the third page, there is a heading entitled “Determination”. This is so short that it merits being quoted in extenso:
“Prior to 1 May 2013 where a teacher’s statutory paid maternity leave overlapped with planned school closures, e.g. Christmas/Easter/summer/mid-term, public and religious holidays, the teacher was entitled to leave in respect of such days, which overlapped, subject to a maximum of thirty working days. The Tribunal further notes that where a teacher’s statutory additional unpaid maternity leave overlapped with public holidays, the teacher was entitled to leave in lieu for all such public holidays.
Arising from Circular 0009/2013 the Tribunal notes that from 1 May 2013, teachers cease to have any entitlement to time in lieu, for annual leave days and public holidays, that fall during their periods of statutory paid and unpaid maternity leave.
Section 22(4) of the Maternity Protection Act 1994 states that: ‘A period of absence from work while on protective leave shall not be treated as part of any other leave (including sick leave or annual leave) to which the employee concerned is entitled’.
Leave in lieu of holidays is in contravention of the Pregnancy Directive and, in particular, section 22(2) of the Maternity Protection Acts, in that these days are rights conferred or imposed by statute, and related to the employees’ employment.
Having considered the matter carefully, the Tribunal is satisfied that the new arrangement set out in Circular 0009/2013, is in contravention of section 22(4) of the 1994 Act and the Pregnancy Directive 92/85. Both the Act and the Directive ensure that the rights connected with the employment contract are preserved other than in relation to pay. Such rights include statutory entitlements to paid annual leave in accordance with the Working Time Directive and the Charter of Fundamental Rights.
Having further considered the lengthy oral and written submissions the Tribunal finds the appeal is upheld”.
*85
20. By way of compensation, the Tribunal awarded variable amounts of days “in lieu” to the nine teachers depending on the agreed figures submitted plus 50 per cent.
21. The determination section of the decision is very hard to decipher. It is devoid of reasons to explain its conclusion that the 2013 Circular is in breach of s.22(4) and the Pregnancy Directive. It correctly notes that the Pregnancy Directive ensures rights connected with the employment contract are preserved other than in relation to pay, including statutory entitlements to paid annual leave under the Working Time Directive. But it then moves to a conclusion that the appeal is upheld without explaining the nature of the breach or how it contravened either s.22(4) or any specific provision of the Pregnancy Directive.
22. Strangely, the fourth paragraph of the determination section of the Decision states that “leave in lieu of holidays is in contravention of the Pregnancy Directive and in particular s.22(2) of the Maternity Protection Acts”. That may have been intended to be a reference to s.22(4) as s.22(2) refers to continuity of employment, a matter unrelated to what the Tribunal was being asked to decide. However, even leaving aside that erroneous reference, leave in lieu of holidays (where those holidays occur during maternity leave) is precisely what the 2011 Circular provided to teachers and what the teachers complained about being withdrawn from them by the 2013 Circular.
Arguments of the parties
23. Counsel for the Minister argued strongly that the decision of the Tribunal was erroneous insofar as it identified a breach of s.22(4), whether based on a finding that the entirety of school closures equalled annual leave or not. It was argued that school closures could not be treated as equalling annual leave. Relying on Attorney General v Davis it was asserted that the Tribunal’s conclusions constituted an error of law, an error as would give rise to judicial review and an error of fact as there was no evidence before the Tribunal to support the finding that the effect of the 2013 Circular was to end any entitlement of teachers to time in lieu of holidays accrued during maternity leave. I deal with that argument below.
24. Counsel for the teachers, having carefully placed the Tribunal decision in context having regard to the case argued before it, made an attractive argument that in fact the Tribunal were deciding that s.22(1) of the 1994 Act, or more probably, art.11(2)(a) of the Pregnancy Directive, had been breached. In summary, the latter obliges Member States to ensure that the rights connected with the employment contract of workers must be ensured while workers are on maternity leave. Her justification for intuiting that this was the justification for the Tribunal’s decision was that this was the case made to the Tribunal: that the nine teachers in question were all already pregnant or on maternity leave at the time the 2013 Circular was introduced; that they had existing rights and/or benefits arising out of the 2011 Circular (whether characterised as contractual or by way of legitimate expectation) *86 to leave during term time that could not be removed by the 2013 Circular; and that such existing rights/benefits were protected by art.11(2)(a). For ease of reference I will describe this as the “legitimate expectation argument”.
25. She identified that no case had been made to the Tribunal that the entirety of school closures constituted annual leave and argued that I should not decide the case upon this basis. In relation to the finding of breach of s.22(4), counsel suggested that if I concluded that finding did not fit in with the wording of the section, I should turn to the Pregnancy Directive and, if necessary, prefer the finding of the Tribunal based on the Directive.
26. Counsel for the teachers stressed the importance of interpreting the determination section of the decision having regard to the entirety of the material contained therein, rather than focusing on a single sentence. She focused on the line of case law, including Attorney General v Davis, which identifies that a finding of fact should only be overturned in limited circumstances. She submitted the Tribunal did not make a finding that school closures amounted to annual leave and that the court could not categorise the Tribunal’s Decision as including any such finding. It was noted that Mr Barrett’s Affidavit of 11 November 2019 sworn on behalf of the Minister exhibited evidence not put before the Tribunal and that the Minister had failed to engage with what the Tribunal had decided.
27. In response to the argument that the Tribunal had, looked at in the round, made a decision that was referable to the legitimate expectations of the teachers, counsel for the Minister responded that this could not be the case given that: (a) the decision did not refer to the factual circumstances of the teachers; (b) it was not possible to understand whether the Tribunal considered the operative date in respect of the pregnancy to be the date it commenced or the date it was notified to the school; (c) it was not possible to understand whether the operative date in respect of the 2013 Circular was the date of the press release announcing it, the date it was provided to the schools, or the date it came into force: (d) it was not possible to understand whether the Tribunal had arrived at its conclusion on the basis of rights or benefits connected with the employment contract; and (e) it was not possible to understand whether the decision was based on contractual rights or legitimate expectations.
Legitimate expectation argument
28. I fully accept that, had the Tribunal arrived at its decision on the legitimate expectation argument, after having addressed all relevant matters, presumably including:
• the relevant provisions of the Directive and/or the 1994 Act,
• the facts applicable to the of each of the nine teachers including the date on which notification of pregnancy was given to the school in question and the date upon which the Circular was either notified to schools or came into effect, *87
• the legal effect of the 2011 and the 2013 Circulars, and
• the nature of the rights of the teachers potentially affected by the 2013 Circular;
then the legitimate expectation argument might well provide the basis for a decision upholding the appeal.
29. However, there is no element of the Tribunal decision, whether in its summaries of the arguments of each party, or in the dispositive part of its decision, that identifies, even glancingly, either the requisite factual context of the dispute or the legal basis necessary to ground a conclusion on the basis of the legitimate expectation argument. A reader coming cold to the Tribunal decision, as I did on the first day of hearing this case, would have no idea that the nine teachers were pregnant when the 2013 Circular was adopted; that one of them was already on maternity leave; that the core case of the teachers was that they had contractual and/or legitimate expectation rights under the 2011 Circular that could not be affected by the introduction of the 2013 Circular; that the Tribunal were (possibly) invoking s.22(1) and art.11(2)(a) of the Pregnancy Directive; and that their conclusion was based, not on s.22(4) as the Tribunal explicitly stated but either on art.11(2)(a) which protects rights connected with the employment contract of workers in the context of maternity leave or s.22(1) of the 1994 Act.
30. Accordingly, I cannot accept that the Tribunal in fact made their decision on the basis of the legitimate expectation argument as the decision contains none of the necessary elements that would allow me to arrive at such a conclusion. The Tribunal’s decision must be taken at face value: and the Tribunal has concluded on the face of its decision that what it refers to as the “new arrangement set out in Circular 0009/2013 is in contravention of s.22(4) of the 1994 Act and the Pregnancy Directive 92/85”. Having regard to that wording, and contrary to what is advanced by counsel for the teachers, I cannot agree that the decision cannot be read to condemn the 2013 Circular. There is a clear finding that s.22(4) and the Pregnancy Directive have been breached by the arrangement introduced by the Circular. The finding in respect of breach of s.22(4) is inescapable and cannot be brushed aside by reference to the invocation of the Pregnancy Directive by the Tribunal; and I must therefore consider whether there is an error of law in that conclusion.
Breach of s.22(4)
31. As identified above, the Tribunal held that the requirement that annual leave and public holidays accrued during maternity leave be taken during school closure periods was a breach of s.22(4). A brief examination of s.22(4) demonstrates that this is a manifest error of law.
32. Section 22(4) may be found in Part IV of the Act dealing with employment protection. The margin note to s.22 refers to “preservation or suspension of certain *88 rights, etc. while on protective leave, etc.” Section 22(1) provides that during a period of absence from work while on, inter alia, maternity leave:
“… the employee shall be deemed to have been in the employment of the employer and, accordingly, while so absent, the employee shall … be treated as if she had not been so absent; and such absence shall not affect any right … whether conferred by statute, contract or otherwise, and related to the employee’s employment.”
33. The detailed application of that principle in the context of leave may be found in s.22(4), which provides:
“(4) A period of absence from work while on protective leave shall not be treated as part of any other leave (including sick leave or annual leave) to which the employee concerned is entitled.”
34. That is an easy prohibition to understand. If an employee is on maternity leave, they cannot be taken to be on any other kind of leave to which they are entitled. So, for example, if a woman is entitled to 20 days annual leave per calendar year and she is out on maternity leave for six months from 1 January to 30 June, she is treated as if she has been in the workplace and thus accumulates her annual leave. When she returns on 1 July she cannot, for example, be deemed to have already taken 10 of her 20 days of annual leave while she was on maternity leave as this would mean that, for those 10 days, her annual leave would overlap with her maternity leave. That would be in breach of s.22(4) as it would mean her maternity leave was being treated as part of her annual leave.
35. In this case, the teachers still were expressly permitted to accumulate their annual leave (including that derived from public holidays) to be taken after their maternity leave ended so there was no question of their maternity leave being treated as part of that annual leave. Nonetheless, the Tribunal concluded there was a breach of s.22(4). It appears that the Tribunal could only have taken that view on the basis of two alternate approaches.
36. The first is that leave during school closure periods did not constitute leave at all. Counsel for the Minister focused very heavily on the following sentence in the determination section (quoted above) as support for his argument that this was explicitly what the Tribunal had found:
“Arising from Circular 0009/2013 the Tribunal notes that from 1 May 2013, teachers cease to have any entitlement to time in lieu, for annual leave days and public holidays, that fall during their periods of statutory paid and unpaid maternity leave.”
37. Counsel for the teachers urged me to simply treat that sentence as reflecting the wording in the 2013 Circular at para.8.3, i.e. as simply declaratory of the change effected by the 2013 Circular but not reflecting a finding by the Tribunal that leave during school closure periods did not constitute leave at all. She argued that *89 as this was not the case made by the teachers, it could not have been the finding arrived at by the Tribunal. She submitted that the true rationale for the Tribunal finding was that which I described above, i.e. that the teachers had a right under the 2011 Circular to take accumulated leave during term time because they were all pregnant when the 2013 Circular came into force, that the Tribunal’s reliance on s.22(4) was effectively incidental and what I should focus upon was the reference in the dispositive paragraph to the 1994 Act and the Pregnancy Directive.
38. I have no problem treating the reference in the Tribunal’s Decision to teachers ceasing “to have any entitlement to time in lieu, for annual leave days and public holidays, that fall during their periods of statutory paid and unpaid maternity leave” not as a finding by the Tribunal that their leave periods had been removed but rather a description of what the 2013 Circular had effected, i.e. that those leave periods could no longer be taken in term time. After all, the 2011 Circular referred to teachers being entitled to “leave in lieu” where maternity leave overlapped with scheduled school holidays (para.5.1) and providing that “leave in lieu can only be taken on working days” (para.5.3). It was explained to me at the hearing that working days meant term time days. The 2013 Circular had clearly changed that position radically, requiring that leave could only be taken during school closures.
39. But construing that sentence as simply a description of the change effected by the 2013 Circular as opposed to a substantive finding that the teachers’ rights to leave were lost does not explain away the problem with the reference by the Tribunal to s.22(4). It is not possible to get away from the fact that the Tribunal concluded that s.22(4) had been breached.
40. One way they could have arrived at that finding was if they were treating the entirety of school closure times as being annual leave. If that was the case, then for example a teacher who had been on maternity leave from 1 January to 31 August would be entitled to the combined total of any closures during half term, Easter holidays, summer holidays and all public holidays during that period. The totality of that would not be possible to take during school closure periods because there would simply not be enough time to do so. Accordingly, that would be a breach of s.22(4) since it would require some portion of maternity leave to be treated as part of any annual leave.
41. If that was the rationale for the Tribunal’s approach, treating the entirety of school closure times as being annual leave constitutes an error of law for the reasons set out below.
42. First, it was not the case made by the teachers when they first brought the case to the Rights Commissioner. The complaint forms were carefully opened to me by counsel for both sides and they clearly set out the factual situation of the teachers and the fact that they were pregnant when the 2013 Circular was introduced and that this was the basis of the challenge brought by the teachers. Both Mr Barrett in his Affidavit sworn 11 November 2019 and Ms Lyne in her *90 Affidavit sworn 22 January 2020 on behalf of the teachers agree that the case made to the Tribunal was that the teachers were entitled to the arrangements in being at the time they became pregnant. Moreover, it is clear from the detailed note of the oral submissions made to the Tribunal by counsel for the teachers that no case was made that the entirety of school closures constituted annual leave.
43. Second, there is no legal or factual basis identified in the decision of the Tribunal that might justify them concluding that the entirety of school closure days constitute annual leave for teachers. It is agreed between the parties that the teachers have contracts of employment with their employing schools and that the terms and conditions of teachers in recognised schools are subject to, inter alia, Department Circulars (see para.5 of the Affidavit of Ms Lyne sworn 22 January 2020). Both the 2011 Circular and the 2013 Circular are examples of such circulars.
44. It is obvious from the terms of the 2011 Circular that even at that stage, it was not envisaged that the entirety of school closure constituted annual leave. This may be seen from the fact that where maternity leave overlapped with planned school closures such as Christmas, Easter, mid-term, summer break, public holidays and, where appropriate, religious holidays, a teacher was entitled to leave in lieu for all such days which overlap subject to a maximum of 30 working days (my emphasis). If the entirety of school closure days were annual leave, then there is no explanation of the ceiling of 30 working days. No other circular or legislative provision was pointed to by the Tribunal as the basis for a finding that a teacher’s annual leave was made up of the entirety of school closure time.
45. Even if the situation prior to the 2013 Circular had permitted school closure times to be treated as annual leave, the 2013 Circular made it quite clear that teachers were only entitled to 20 days’ annual leave. (The figure of 20 days annual leave comes of course from the Organisation of Working Time Act as identified above.) As noted above, the Circular provides, inter alia:
“8.1 In general full-time employees are entitled to 20 days annual leave. Employees who work less than full hours are entitled to annual leave on a pro rata basis.”
46. Thus para.8.1 makes it clear, possibly for the first time, that teachers are only entitled to 20 days’ annual leave. As averred to in Mr Barrett’s Affidavit, a similar provision has been included in other circulars dealing with other types of leave since then, including Circular 0018/2013 on adoptive leave entitlements for registered teachers, Circular 0026/2013 on parental leave entitlements for registered teachers, Circular 0059/2014 on sick leave scheme for registered teachers, and Circular 0057/2016 on paternity leave scheme for registered teachers. The teachers have complained that certain evidence was put before this court that had not been put before the Tribunal. However, by letter of 29 June 2016, the CSSO provided copies of the parental and sick leave Circulars to the Tribunal and so I am satisfied it is appropriate to take at least those two Circulars into account.
*91
47. The Tribunal does not set out any basis for explaining why the Minister was not entitled to prescribe the period of annual leave for teachers at 20 days by way of the 2013 Circular. Indeed, in the last substantive paragraph of the determination of the decision, the Tribunal refers to “statutory entitlements to paid annual leave in accordance with the Working Time Directive”. That suggests the Tribunal is in fact accepting that the entitlement of the teachers is to the 20 days’ paid annual leave provided by the Working Time Directive rather than the 70 plus days of school closures. I should observe in this context that it was undisputed between the parties that requiring teachers to take their leave during school closure periods gave them sufficient time to take all their annual leave plus public holidays (totalling 29 days in total) during school closure periods, (totalling over 70 days per year), in almost all cases. Where that is not possible within a school year (which runs from 1 September to 31 August) teachers are exceptionally allowed to take time off during term time.
48. Finally, the Tribunal did not engage with the averment at para.29 of Mr Barrett’s Affidavit to the effect that under the Croke Park agreement, teachers in recognised primary schools may be required to carry out some activities including school planning, continuous professional development, induction, policy development, staff meetings and in-service during school closure periods, subject to a maximum of 36 hours. There is no dispute but that was before the Tribunal, as it was referred to by counsel for the teachers in her submission to the Tribunal.
49. For all those reasons, if the Tribunal’s (unstated) justification for finding the 2013 Circular unlawful was because requiring accumulated leave to be taken during school closure days meant that s.22(4) would inevitably be breached, then I am satisfied this was an error of law. This is because, as per the analysis above, it was not the case made by the teachers, there is no legal basis identified for such a conclusion and it is incompatible with the evidence identified in this judgment before the Tribunal, in particular the 2011 Circular, the 2013 Circular, the circulars on parental leave and sick leave, and the Croke Park Agreement.
50. Finally, it is true that the Tribunal identified a breach of s.22(4) and the Pregnancy Directive. But in circumstances where no provision of Pregnancy Directive was identified as having been breached, and no explanation was given as to why the entire Directive had apparently been breached, that fleeting reference to same cannot operate to provide a justification for the determination section of the Decision.
51. I identified above that the Tribunal could only have upheld the appeal on the basis of two alternate approaches. The first was leave during school closure periods did not constitute leave at all and I have dealt with that above. The second is that they did not reach such a conclusion and decided s.22(4) was breached for some other reason. But if that is the case, it is not possible to understand why they concluded that the teachers’ rights had been breached under s.22(4) since, as noted above, the new regime introduced by the 2013 Circular ensures that the *92 20 days plus public holidays can be taken during school closures, with a fallback arrangement for some days to be taken in term where that is not possible. The arrangements introduced by the 2013 Circular do not necessitate maternity leave being treated as any other kind of leave. Annual leave is taken during school closure periods, not during maternity leave. Therefore, any such conclusion by the Tribunal would also constitute an error of law.
52. In summary, whether one treats the finding of breach of s.22(4) as being based on an assumption that the entirety of school closure was annual leave or based on some other assumption, the Tribunal have made an error of law.
53. Various cases have been cited to me in respect of the duty of a court when determining an appeal on a point of law, including; the deference required to be given to an expert tribunal; the very narrow circumstances in which a court should overturn a finding of fact; the entitlement to overturn an error of law; and the obligation to give reasons, including: Attorney General v Davis; Nano Nagle School v Daly[2019] E.L.R. 221; Karpenko v Freshcut Food Services Ltd[2019] IEHC 693; Earagail Eisc Teoranta v Doherty[2015] IEHC 347, and Transdev Ireland Ltd v Caplis[2020] IEHC 403.
54. The principles in these cases are well established and I do not propose to rehearse them in any detail. I fully accept that I should only quash a decision of an expert tribunal where either the Tribunal has got the law wrong or where it has made an error of fact in the circumstances identified by McKechnie J. in Attorney General v Davis. I accept that here I should defer to the undoubted specialist expertise of the Tribunal in employment matters, including maternity leave and I note the comments of Baker J. in HSE v Raouf Sallam[2014] IEHC 298 that the High Court must show appropriate curial deference to the Labour Court but such deference arises when the Labour Court deploys its particular expertise on industrial relations issues. However, here there is a clear error of law for the reasons identified above. The case law makes it manifest that no deference is due to a specialist tribunal on an error of law for obvious reasons. Accordingly, nothing in the case law cited by both parties indicates that I ought to abstain from quashing an obvious error of law, such as exists here in respect of the finding of breach of s.22(4). I accordingly quash the decision of the Tribunal for error of law.
55. Separately I should identify my approach to a matter that was in contention between the parties, being the Minister’s attempt to rely on various decisions of Equality Officer/Adjudication Officer McGrath of 2018. Those decisions followed claims made by teachers (including the teachers who have brought the instant case) in respect of the introduction of the 2013 Circular but based on an alleged breach of the Employment Equality Acts 1998-2011 and the Recast Equality Directive 2006/54 of 5 July 2006. Those claims were unsuccessful and the decisions were not appealed. The decisions addressed, inter alia, the issue of whether school closures constituted annual leave. Sustained objection was taken by counsel for the teachers on the reliance sought to be placed on the reasoning *93 in these decisions, on the basis that they concerned the adjudication of a different claim pursuant to different statutory enactments (see for example para.9 of the Affidavit of Ms Lyne sworn on behalf of the teachers). I agree with the teachers in this respect. The decisions cannot be considered persuasive in respect of the matters I am called upon to decide given that the question the Equality Officer was required to determine was whether or not the teachers in question had been discriminated against on the ground of gender as compared to non-pregnant colleagues. That is quite a different legal issue to the question at hand here, i.e. an alleged breach of the 1994 Act and/or the Pregnancy Directive. The fact that these decisions had been opened to the Tribunal – the foundation for the argument by the Minister that they were relevant to this hearing – does not alter my view given the very different inquiry the Equality Officer was conducting.
Tribunal’s failure to give reasons for decision
56. It was valiantly submitted by counsel for the teachers that the decision does not fail to enable the parties to understand why they lost the case, so as to permit them to craft an appeal. I cannot agree. The necessity for attempting to divine the intention of the Tribunal in the way I have been obliged to do above comes from the wholesale failure of the Tribunal to explain the basis for their decision, even in the most rudimentary way.
57. However, the Minister did not identify as a point of law that the Tribunal had failed to give adequate reasons for its decision. The Minister sought to introduce the lack of reasons as a ground of complaint in the legal submissions of 5 October 2020 (see para.6). Not surprisingly, the teachers vigorously object to their effort to introduce this ground into the case. In response to this objection, the Minister invoked the lack of prejudice to the teachers in this point being allowed, and identified that in the Affidavit of Mr Barrett sworn 11 November 2019 he identified at para.47 that no reasoning was provided by the Tribunal for their decision and he did not know the basis upon which the Tribunal made its decision that the 2013 Circular was in contravention of the 1997 Act and the Pregnancy Directive. The second Affidavit of Ms Williams sworn 14 February 2020 was also relied upon where she averred that the court has jurisdiction to consider whether the impugned decision was tainted by defective or no reasoning (para.9). Affidavits should be used to provide evidence to the court and not legal submissions and so I disregard this last averment of Ms Williams.
58. In this type of statutory appeal, there is no requirement for a statement of grounds. Rather the point of law must simply be introduced in a notice of motion. The Minister was admirably succinct in her identification of same. Nonetheless, given that the jurisdiction of the court exists exclusively in relation to a point of law identified by an appellant under s.34(2), I only have jurisdiction in relation to the point of law identified in the notice of motion. The four walls of the court’s jurisdiction are delineated by the point of law identified. I do not have jurisdiction *94 to extend the statutory appeal to points not encompassed by the point of law identified. No matter how widely I interpret the point of law in this case, I cannot define it to include a failure to give reasons. Averments that include a complaint about a factual situation cannot be the basis for an implicit amendment of the points of law the subject of the appeal.
59. However, I should add that in this case, the fact that the Minister is precluded from arguing the reasons ground does not mean the lack of reasons is irrelevant to the outcome of this case. This is because, as identified above, the Tribunal arrived at a conclusion that s.22(4) and the Pregnancy Directive had been breached. I have found s.22(4) was not breached by the adoption of the 2013 Circular. Counsel for the teachers argued that even if the Tribunal was wrong about this, it does not matter since there was a basis for its decision as discussed above, i.e. that the Tribunal in fact decided the case on the legitimate expectation argument. That may have been in the mind of the Tribunal when arriving at their decision. But there is not one iota of reasoning in the Tribunal’s decision that would allow me to decide that this was in fact the basis for their conclusion. The lack of reasons provided by the Tribunal, even bare reasons that simply communicated the gist of the Decision (as identified in Earagail Eisc Teoranta v Doherty following the decision in Faulkner v Minister for Industry and Commerce, unreported, High Court, Murphy J., 25 June 1993 prevented me from potentially concluding that there was indeed a lawful basis for the decision.
Remittal
60. Given that I have decided to quash the decision, the question then arises as to what remedy should be provided. There is a stark dispute between the parties on this point: the teachers argue strongly for remittal if the decision is quashed, while the Minister argues strongly against remittal. I am persuaded by the arguments of counsel for the teachers in this respect, and her reliance upon the Supreme Court decision in Nano Nagle School v Daly. She says that where the Tribunal has erred in making its decision, it is for the Tribunal to fix its error, and that the declaratory relief sought by the Minister is outside the jurisdiction conferred on the High Court.
61. This approach was disputed by counsel for the Minister, who said that I should quash the decision of the Tribunal thus ensuring that the decision of the Rights Commissioner would stand. The Minister argued against remittal on the basis that it would be time consuming and costly. There was a significant argument between the parties as to whether those factors were appropriate ones to consider when deciding whether to remit a matter back to the Tribunal. Counsel for the Minister invoked the decision of Kelly J. in Usk District Residents Association Ltd v Environmental Protection Agency[2007] IEHC 86 which discusses the invocation of the discretion to remit; and counsel for the teachers countered that in employment cases, the appropriate remedy was always remittal where the decision *95 of the Tribunal had been quashed. This is an interesting debate that might require to be resolved in the future; but here, I do not need to resolve it as I am satisfied that this matter should be remitted for the following reasons.
62. In Nano Nagle, McKechnie J. observed as follows:
“111. … While the Labour Court determination did not comply with the statute, what occurred can, in fact, and in law, be addressed. But, to my mind, it can only be remedied by remitting the appeal to the legal forum charged under the statute with evaluating the evidence in accordance with law – and applying the law to the facts…. This court should not act as a surrogate Labour Court, which is charged with carrying out a statutory function”.
63. Here, the Tribunal should be given an opportunity to identify the appropriate factual basis and legal basis for their decision; and the only way to achieve same is to remit it back to the Tribunal. If, as counsel for the teachers asserts, the Tribunal did not intend to make a decision on the basis of s.22(4) but in fact intended to do so on the basis of the particular position of the teachers at the time of the introduction of the 2013 Circular, they can make that clear in a new decision, giving adequate reasons for same.
64. For that reason, I am satisfied that remittal is the appropriate course despite the long period of delay since this matter first commenced in 2012 (some of which was entirely outside the control of either party) and the desirability of bringing finality to this matter.
Conclusion
65. For the reasons set out above, I quash the decision of the Tribunal of 23 October 2019 and remit the matter back to whatever composition of the Tribunal are in a position to adjudicate on same, given that the Tribunal is now in run off mode.
Annex
Board of Management of Scoil An Chroí Ro Naofa Íosa & Ors v Donnelly & Ors 2019/348MCA
Worked example for the Court – Helen Donnelly
Background
This information is taken from the documentat page 59 in Pleadings Book 1. *96 Ms Donnelly’s absence, as recorded by her school in the On Line Claims System, commenced on 20 September 2013 and continued for 26 weeks until 20 March 2014, inclusive. Unpaid additional maternity leave commenced on the 21 March and continued until 27 June 2014.
The annual leave year for teachers such as Ms Donnelly runs from 1 September until 31 August. The period covered by her maternity all fell within the one annual leave year 2013/2014 and ran from 20 September 2013 until 27 June 2014. During that period there fell eight public holidays (the last Monday in October, Christmas Day, St Stephen’s Day, New Year’s Day, St Patrick’s Day, Easter Monday, the first Monday in May and the first Monday in June). In addition, there were a total of 25 school closure days (four in the October mid-term break, seven during the Christmas break, five during the February mid-term break, nine during the Easter break) during the period of her maternity leave).
The position under Circular 11/2011
Under the terms of Circular 11/2012, Ms Donnelly accrued 33 “school closure days”, including public holidays, during her maternity and as such could take 30 days in lieu during term-time. The Department does not have details of the precise date on which Ms Donnelly’s school closed in late June 2014 and when it opened in late August/early September 2014, however assuming the relevant dates were Friday 27 June 2014 (last day of term) and Monday 1 September 2014 (first day of term) (which would have been usual in that year) then the position is as follows. By the time her maternity leave finished on 27 June 2014, school closure period had begun. Therefore she could take 30 days annual leave in lieu from Monday 1 September until Friday 17 October 2014.
The position under Circular 9/2013
Under the terms of Circular 9/2013, these public holidays are treated as eight additional days of annual leave. When combined with the four weeks’ entitlement to annual leave, this gives a total of 28 days of annual leave to be catered for by the school closures.
Ms Donnelly did not avail of any standard school closures in 2013/2014 prior to commencing maternity leave. However in the period after the ending of Ms Donnelly’s maternity leave (which occurred on 27 June 2014), Ms Donnelly’s school was closed for the months of July and August 2014. These two months of school closures accounted for a total of 43 working days (not including the August bank holiday). As such, Ms Donnelly had to and could avail of her 28 days’ leave during this period of School Closure, and returned to work on Monday 1 September.
Had the 2011 Circular applied her leave would have continued until 17 October 2014.
Representation
Yvonne Maguire v Aer Lingus
Rights Commissioner MP2452/00/JH
28 February 2001
[2001] 12 E.L.R. 355
(February 28, 2001)
Maternity leave—Right to return to work—Position held immediately prior to maternity leave re-organised—Suitable alternative employment—Compensation—Maternity Protection Act 1994 (No. 34), sections 8, 26, 27
Facts
The claimant was employed as the group financial accountant in the group finance department of Aer Lingus. She had held that position since 1995 and her rate of pay at the time of the claim was £650 per week. In the course of her employment, the claimant went on maternity leave in accordance with her entitlement under the Maternity Protection Act 1994. On her return to work on August 28, 2000, the claimant was informed by Mr G. O’Sullivan, the group financial controller, that the position which she had filled immediately prior to her taking the leave no longer existed. This was due to a reduction in the portfolio of companies handled by Aer Lingus and a consequent reduction in her workload. Her re-assignment to other duties was outlined. However, there was a lack of clarity about the nature of the work that would be assigned to her at the end of the six-month period thereafter. As a result of this re-organisation, the claimant referred the matter for determination to a rights commissioner on the basis that Directive 92/85 and the Maternity Protection Act 1994 had been breached.
Determined
by the Rights Commissioner in allowing the claim:
(1) Whilst accepting that the argument relating to the reduction in the claimant’s workload was a compelling one, it was not sufficiently urgent or immediate, in the short term, to justify the manner in which the claimant was treated on returning from her leave.
(2) The uncertainty surrounding the long-term future of the claimant’s conditions of employment did not meet the requirements of the Maternity Protection Act 1994 with respect to suitable alternative work.
(3) The claimant’s employers at Aer Lingus exploited her absence on maternity leave and attempted to exploit her vulnerability at the point of her return, in breach of section 26 of the Maternity Protection Act 1994.
(4) That, in these circumstances, financial compensation is the appropriate remedy for the damage caused to the claimant.
(5) The claimant was awarded £3000 compensation
No cases were referred to in the determination
*356
Full text of the determination of the Rights Commissioner:
Background
Yvonne Maguire is employed as group financial accountant in the group finance department at Aer Lingus. She has held that position since 1995 and her rate of pay at the time of claim was £650 per week gross.
The claim is submitted under section 26(1) of the Maternity Protection Act 1994
Ms Maguire’s claim
Prior to her departure on maternity leave, Ms Maguire experienced some hostility on the part of her manager Mr G. O’Sullivan, group financial controller (this matter is the subject of a separate claim by Ms Maguire).
On her return from maternity leave on August 28, 2000, Ms Maguire was informed by Mr O’Sullivan that her position no longer existed because of the reduction in the portfolio of companies handled by Aer Lingus and the related workload. Her re-assignment to other duties was outlined and there was no clarity about what work would be assigned to her at the end of a six-month period. It was claimed on Ms Maguire’s behalf that the Directive 92/85 and the Maternity Protection Act 1994 were breached by the company for the following reasons:
• The claimant was denied her entitled her entitlement to maternity leave in contravention of section 8 of the 1994 Act;
• The claimant after her maternity leave was denied her entitlement to return to the job of group financial accountant which she held immediately prior to her maternity leave, in contravention of section 26 of the 1994 Act; and
• Without prejudice to the above, that the claimant was not offered suitable alternative work, in contravention of section 27 of the 1994 Act.
Aer Lingus’s response
• Any issues involved alleged exchanges with Mr O’Sullivan are the subject of a separate case and therefore are proper to be raised at this hearing.
• The tasks which formed the workload of the group financial accountant have diminished with the decline in the number of companies for whom accounts are handled. This trend is increasing. The post held by Ms Maguire is no longer a full-time position.
• Aer Lingus intention was and remains to deal with the future position of Ms Maguire. No actual change has occurred. Ms Maguire continues to hold the position held by her prior to her maternity, leave. Any work offered to Ms Maguire was commensurate with her qualification having regard to available work and future requirements.
• The company has fully complied with the requirements of the 1994 Maternity Protection Act and related legislation.
*357
Conclusion
The case made by Aer lingus for the re-organisation of the group financial accountant/control area which Mr O’Sullivan and Ms Maguire have responsibility for is compelling in so far as it is evident that the workload has declined and will continue to do so. The difficulty is the manner in which the company decided on the reorganisation and the timing of the decision and finally who the decision would impact upon.
From the statements made at the hearing it is apparent that the decision was made by Mr O’Sullivan’s superior on the recommendation of Mr O’Sullivan. Ms Maguire was absent on maternity leave and was not consulted. The impact in a negative sense was to be wholly on Ms Maguire. Aer Lingus quite correctly point to the decline in the portfolio of accounts. However a number of these changes took place in the early and mid—1990s. The IPO which the company point to as a source of further decline is not scheduled for the immediate future. In other words there has been a drift away from Aer Lingus of subsidiary companies and that drift will continue. So while the overall argument is compelling the urgency arid immediacy of the situation particularly in the period leading up to year end accounts is far less so. The uncertainty surrounding her longer term future certainly did not meet the requirements of the act in respect of suitable alternative work. In light of the forgoing, it is impossible to escape the fact that management at Aer Lingus exploited Ms Maguire’s absence on maternity leave and attempted to exploit her vulnerability at the point of return, i.e. her first day back at work following maternity leave. I do not accept that the company did not actually carry out the decision as set out in the company letter of 1 September 2000. However this decision appears to be on hold only after interventions on Ms Maguire’s behalf. By then some damage had been done to Ms Maguire and compensation is appropriate given the circumstances.
Recommendation
On the basis of the evidence presented, I find that in their dealings with Ms Yvonne Maguire on her return from maternity leave, Aer Lingus breached section 26 of the Maternity Protection Act 1994. Yvonne Maguire is to receive £3000 compensation in respect of the breaches of the legislation by Aer Lingus.
Note : Nothing in this recommendation shall be taken by either party as interfering with the employer’s right to discuss and implement ongoing change with any employee, through the normal procedures available and agreed within the company.
Duffy -v- Liffey Meats (Cavan)
[2017] IEHC 103 (22 February 2017)
EX TEMPORE JUDGMENT of Mr. Justice Twomey delivered on the 22nd day of February, 2017.
1. This is a case in which the plaintiff seeks, inter alia, an interlocutory injunction requiring the defendant to permit her to resume her function as Creditor Controller within the defendant company and therefore she seeks in essence a mandatory injunction against her employer. In reaching its decision, this Court is mindful of the fact that in interlocutory hearings the Court should not make findings in relation to disputed facts and also that when dealing with mandatory injunctions, particularly in relation to employment contracts, there is a requirement upon the applicant to show that she has a strong case that is likely to succeed at the hearing of the action.
Background
2. Prior to her departure on maternity leave on 6th November, 2015, the plaintiff was the sole Credit Controller in the Company on a base salary of €26,000 per annum, which in addition to bonuses gave her an annual salary of some €40,000. The plaintiff returned to work after her maternity leave on the 9th of January, 2017. She claims that she was advised by Mr. McDermott, the Financial Director of the Company on that date that she would not be returning to the post of Credit Controller, which during the course of the year or so of her absence, was now being done by two other employees of the Company. The plaintiff was instead offered a position in sales, which the Company claims is not a lesser role in the Company since it says that both positions are subject to the same terms and conditions.
3. In the nine or so working days between the 9th January, 2017, and 20th January, 2017, when the plaintiff was back at work, she became very distressed by the fact that she would not be returning to her previous position and the fact that she was not assigned sufficient work to keep her occupied at this time. She was also distressed about the fact that she was given a verbal warning due to her taking a day off on Wednesday 11th January, for a medical appointment, without consent (even though she claims that she notified the Company of same). In addition, she was distressed by the fact that her weekly salary for her first week back at work was €510 gross, which was some €200 short of what she used to receive as a Credit Controller (although the Company claims that this shortfall is explained by the fact that it was too early for any bonus to be payable as she had only returned to work).
4. An email dated 12th January, 2017, from the plaintiff to Mr. McDermott and Mr. Lyons, the Human Resource Manager, was produced to the Court in which it was stated:
“Please note that I have no intention of applying a “wait-and-see” approach as to how things might pan out for me over the next few weeks, as canvassed by you in the course of our meeting Monday evening.
The purpose of this letter is to call upon you to reinstate me to my full role or similar position by Monday 22nd January. As suggested by you during our meeting Monday evening last that you required two weeks in order to consider my new role.”
5. At the end of her first nine or so days of work, and as a result of the aforesaid distress, the plaintiff went to see her doctor on the 20th January, 2017. She was advised by her doctor not to return to work in the interests of her mental health and she has not returned to work in the Company since the 20th January, 2017, to the date of this hearing of this motion, which took place on the 21st February, 2017. There is no indication of when the plaintiff might be able to return to work.
6. It is also relevant to note that the plaintiff is not entitled to be paid when she is on sick leave, so she is not receiving any payment from the Company during her current absence. In this regard, she seeks in addition to an injunction ‘requiring the defendant to permit the plaintiff to resume her function as Credit Controller’, an injunction directing the ‘defendant to pay the plaintiff’s salary’.
7. For its part, the defendant provided this Court with terms of employment which it says it provided to the plaintiff, although it is to be noted that the plaintiff is described therein as an ‘accounts receivable clerk’, rather than a credit controller. The document opened to this Court contains the following term:-
“It is an express condition of employment that you are prepared, whenever necessary, to transfer to alternative departments or duties within our business. This flexibility is essential as the type and volume of work is always subject to change, and it allows us to operate efficiently and gain maximum potential from our workforce.”
8. On this basis, the Company claims that it was contractually entitled to assign the plaintiff to a different department when she returned to work. For her part, the plaintiff claims that she never received these terms of employment and she points out that this document is not signed by her, or on behalf of the Company and so she claims that the said condition is not a term of her employment.
9. There is therefore a factual dispute between the parties as to whether the plaintiff received these terms of employment, which factual dispute it is not possible to resolve at this interlocutory hearing.
10. Apart from its rights under the alleged terms of the employment contract, the Company claims it was entitled, in accordance with ss. 26 and 27 of the Maternity Protection Act 1994, to offer the plaintiff a different position to that held by her prior to her maternity leave, where it is not reasonably practicable to offer her the same position, provided that the alternative position is a suitable alternative. In this regard, the Company claims a reorganisation of the Credit Control Department in the Company took place almost a full year prior to the return to work of the plaintiff and as a result of this reorganisation, the Credit Control Department now consists of two employees. The Company also claims that there were complaints and dissatisfaction regarding the plaintiff’s work in the Credit Control Department and this was a factor in the decision to re-organise the Department during her absence on maternity leave. The Company also claims that the plaintiff presented difficulties regarding how credit control operated and this was why she was offered an alternative position.
11. In all of these circumstances the Company claims that it was not reasonably practicable for the plaintiff to return to work in the same position. It believes that it has complied with the Maternity Protection Acts by providing the plaintiff with a position, namely a sales position, which is a suitable alternative to her previous position
The Law
12. The plenary summons issued in this case seeks injunctions in similar terms to those now being sought pursuant to the plaintiff’s motion in these interlocutory proceedings. It seems clear to this Court that the injunctions sought amount to mandatory injunctions, since they require the Company to employ the plaintiff as a Credit Controller with immediate effect. When dealing with a mandatory injunction, such as the one in this case, it is clear from the judgement of Fennelly J. in Maha Lingham v HSE [2006] 17 ELR 137 at p. 140 that:-
“it is necessary for the applicant to show at least that he has a strong case that he is likely to succeed at the hearing of the action. So it is not sufficient for him simply to show a prima facie case, and in particular the courts have been slow to grant interlocutory injunctions to enforce contracts of employment.”
It is also relevant to refer to Earley v HSE [2015] IEHC 520 where Kennedy J. noted at paragraph 30 that:-
“All the authorities make it abundantly clear, that the court should not seek to resolve contested issues of fact in an application for an interlocutory injunction”.
Conclusion
13. This Court has referred earlier to several of the factual disputes between the parties in this case, which are clearly of significance to the chances of success of the plaintiff at the hearing of this action. For the reasons stated by Kennedy J., this Court does not propose to make any findings in relation to these factual disputes.
14. In these circumstances, and bearing in mind the reluctance of the Courts to grant mandatory injunctions to enforce contracts of employment, the plaintiff has failed to convince this Court that she has a sufficiently strong case that she is likely to succeed at the hearing of the action, such that she should be entitled at interlocutory stage to an order forcing her employer to employ her in the Credit Control Department, rather than where she is currently employed.
15. In addition, this Court takes the view that when the plenary proceedings are heard, and if the plaintiff were to be successful, and presuming that she is then fit to return to work, she could at that stage be appointed to the position of Credit Controller. For this reason this Court is of the view that damages will be an adequate remedy for any loss suffered by her, to take account of any alleged difference in her earnings arising from working for the Company, but not in the Credit Control Department.
16. While not determinative of this issue, this Court is also cognisant of the following when assessing the balance of convenience in this case:-
(i) The essence of the plaintiff’s claim is that she is seeking a mandatory injunction to force her employer to return her to the position of Credit Controller and pay her salary, which she would otherwise not be entitled to, even though she is currently absent and has given no indication of when she might be in a position to return to work.
(ii) The plaintiff also seeks an injunction restraining the Company from appointing or assigning any person, other than the plaintiff, to the role of Credit Controller. If granted, this would mean that the Company would effectively be subject to an Order from the High Court, and all that this entails, obliging it to forthwith re-organise its Credit Control Department (and presumably re-assign one or both of the current employees therein to some other position) in the hope that the plaintiff would be able to resume her work at some stage in the future.
17. Finally, it would seem to this Court that the substance of the plaintiff’s complaint is that the Company has failed in its obligations under ss. 26 and 27 of the Maternity Protection Act, 1994. For this reason, it seems to this Court that the more appropriate forum for the resolution of this matter is the Workplace Relations Commission, particularly when one considers that the costs, for both parties, of a Workplace Relations action are considerably less than High Court litigation, combined of course with the fact that under s. 39 of the Workplace Relations Act, 2015, mediation may be offered to the parties, which would increase the chances of an even cheaper resolution of this dispute, at a fraction of High Court litigation costs.