Parental Leave Issues

EU Directives I

The Parental Leave Act 1998, as amended by the Parental Leave (Amendment) Act 2006, governs parental leave.  It implements EU Directives. The legislation provides for unpaid leave of up to 18 weeks in total.

A revised Directive on Parental Leave took effect in March 2012. The Directive seeks to promote equal opportunities for men and women to take leave.  Men and woman are entitled individually to parental leave from birth or adoption until the age of eightOne of the four months is to be provided on a non-transferable basis, so as to encourage both partners to avail of it.

The Directive contemplates that provision for parental leave will be enshrined in law or in collective agreements.  Member States and their social partners may determine whether the leave is granted on a full time or part time basis, from time to time or by way of credit, taking account of needs of both sides of industry. Parental leave may be subject to a period of qualification or length of service, but it may not exceed one year.

States may provide for the circumstances in which an employer, following consultation with employees, through collective agreements or workplace practice, may postpone the grant of parental leave for organisational reasons which are objectively justifiable.  There must be a dispute resolution mechanism under national law. Special arrangements may be permitted to allow small scale businesses to deal with operational and organisational matters.


EU Directives II

Member States and social partners shall assess the needs or measures required to address the needs of adoptive parents. Provision may be made for notice periods in national law.  States may make special provision in relation to access to and the application of parental leave to deal with the needs of children with a disability or long-term illness.

At the end of parental leave, the parent is to have the right to return to the same job or an equivalent job. Employment rights will be preserved and maintained during parental leave.  States are required to protect employees against dismissal or unfavourable or less favourable treatment on the basis of taking parental leave.

Matters in relation to social security and benefits are for the member’s states.  This applies both to income and to the accrual of social insurance contributions and entitlements.

States are to take measures to allow returning employees to take reduced working hours or changed working patterns for a period of time.  Employers must consider a request for part-time work or reduced hours, taking account of both employer and employee needs.

States are to provide force majeure leave.  This may be for urgent family reasons, sickness, accident, or other circumstances making the immediate presence of the employee indispensable.


Basic Right

An employee is entitled to up to 18 weeks’ unpaid leave, in order to take care of a child.  One continuous year’s employment is required in order to qualify.  Up to 14 weeks’ leave may be transferred between parents, who work for the same employer, subject to consent. Parental leave must end when the child is 8 years old.  Similar leave is available in respect of adopted children.

The parental leave entitlement is for each child (other than in the case multiple births). The maximum period is 14 weeks within a 12-month period unless the employer otherwise consents. Public holidays during parental leave are added to the parental leave entitlement. Holiday entitlements accrue.

Greater rights may be given by the employment contract. Many public-sector employees have enhanced entitlements.

Parental leave may comprise a continuous 18 weeks’ period or two separate periods of at least six weeks which together add up to 18 weeks.  They must be more than 10 weeks apart.  A shorter interval may be agreed by the employer.

Parental leave may also consist of hours or days off by agreement with the employer.  This may be negotiated individually or in a collective agreement.


Preserved Rights

There is continuity of the terms of the contract of employment, save for remuneration.  The leave is deemed to be a period of employment.  Continuity of service is preserved for the purpose of various employment rights. The basic contractual and statutory rights remain. The right to pay and pension benefits are suspended.

The obligation to pay social insurance contributions is suspended, but social insurance credits are not accumulated.

Some holiday rights are protected, but others are not. Public holidays during the period are to be allowed in accordance with normal principles. They are added to the end of the period of annual leave.

A probation period can be suspended during the leave.


Exercising Rights

An employee must give written notice of the proposed leave as soon as practicable, but at least six weeks prior to commencement.  The notice must set out the duration of parental leave and how it is to be taken.  The notice may be revoked. Where it is proposed to take two periods, one notice suffices.

The employer is to give a signed confirmation of the parental leave, the date of commencement and the manner in which the leave is to be taken.

The leave may be curtailed or varied by agreement.  The employee and employer may agree to postpone or suspend, paternity leave where the employee become sick, Proof by way of a medical cert must be given to permit parental leave to postponed on account of such sickness.


Refusal /Termination

If the employer receives notice of a proposal, which he believes will have a substantial adverse effect on the operation of the relevant business, due to the unavailability of persons, seasonal factors, volumes, etc. or other employees being on parental leave, it may postpone leave, at least four weeks before the proposed commencement.  If the child goes over the qualifying age during this period, the entitlement is retained.

There must be specific factors which justify the postponement of the taking of leave. It must have a substantial adverse effect on the operation of the business as a result of seasonal factors absence of substitutes to do the work, the nature of work, the number of employees in employment the numbers taking parental leave and other relevant matters

Where an employee gives notice of taking parental leave, an employer can challenge his entitlement to do so, if it believes that the employee is not entitled to take such leave.  The employer can refuse leave. The employee must be given a chance to make representations within a certain period before this notice is given Notice of the objections and counter-proposals against such notice must be given.

Where an employer has reasonable grounds for believing that the parental leave is being misused, (i.e. not used for taking care of the child), the employer may terminate the leave by notice in writing. The employee is then obliged to return, and the parental leave is foreshortened.


Right to Return

Employees are entitled to return to work after parental leave.  The employee must give notice of his intention to return to work by written notice, not less than four weeks before the date on which he is due to return. Where this notice is not given, the WRC may excuse the failure, where there were reasonable grounds.

The person is entitled to return to the job held immediately before protective leave, or it was not his normal job, he may return to his normal job. He is generally entitled to return under the same contract as before, with no less favourable terms. If there have been improvements to the contract that would have applied during the absence, they must be applied

Where it is not reasonably practical for the employer to allow the employee to return to his old job the employer may offer suitable alternative employment.  It must be suitable to the employee or appropriate for him in the circumstances. The terms and conditions must be no less favourable than those of former employment.


Return to Work Issues

Employees may not be subject to penalisation for exercising the right to parental leave.  Penalisation constitutes an automatic ground for unfair dismissal if a dismissal ensues.

Where the return to work is refused, there is deemed to be an unfair dismissal. The date is deemed to be the scheduled date of return. The dismissal is deemed unfair unless there are substantial grounds justifying it. If the dismissal was due to the exercise of the rights are deemed to be unfair.

The employee may request changes to its terms, work patterns and working hours.  The employer must consider the request, having regard to the needs of the business. There is no obligation to afford reduced hours or part-time work. See the section on part-time work.


Force Majeure Leave

Force majeure leave is leave for urgent family reasons owing to the injury or illness of a specified person, so that the immediate presence of the employee at the relevant place, is indispensable.  Force majeure leave allows an employee to take brief and limited periods of paid times off to deal with home emergencies that require his presence.

The specified person must be related as a child, spouse, parent, adopted parent, brother, sister, parent or grandparent. It also includes a person in respect of whom the employee, is in loco parentis.  This has been extended to same-sex partners and persons in a relationship of dependency. The latter category covers a person who resides with and relies on the employee who makes arrangements for his care.

The employee’s person’s presence must be indispensable. Therefore, if he can call for the assistance of another, his presence, may not be indispensable. Usually, the situation arises urgently. The age of the dependent may be relevant. The matter is looked at from the perspective of the employee.  It is sufficient that the position or illness appears serious.  The fact that it turned out not to be so serious in hindsight is not conclusive. As long as the employee genuinely believes there is a need, this is probably sufficient.

The Equality Authority published a code of practice or draft code of practice, which can be taken into account by the WRC in this area.


Period

Force majeure leave is not to exceed three days in any twelve months’ period or five days in any thirty-six-month period.  An employee must give notice as soon as practicable, before taking force majeure leave.  If this is not practicable, a notice may be given afterwards.  It is to specify the date and reasons.

Reasonable proof of the need must be furnished.  In some cases, this may require medical evidence, although not necessarily so.  The test of the need for leave is subjective.  The parent is the primary judge of the urgency of circumstances.

Persons are deemed to continue in employment during force majeure leave.


Administration and Disputes

Employers must  keep records of parental and force majeure leave.  Notices must be retained for a year.  Records must be retained for eight years.

Disputes between employers and employees relating to protective leave rights are decided by the WRC. The application must be made within six months after the circumstances of the disputes arise. The WRC can extend this period, in exceptional circumstances, up to 12 months if exceptional circumstances prevented giving notice.

Disputes relating to, in the case of dismissal are referred to the Workplace Relations Commission.  An order may be made granting parental leave or compensation or both.


References and Sources

Primary References

Employment Law  Meenan  2014 Ch.13

Employment Law Supplement Meenan 2016

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

Employment Law in Ireland Cox & Ryan 2009 Ch.13

Legislation

Parental Leave Act 1998

 Regulations Entitled Parental Leave (Notice of Force Majeure Leave) Regulations 1998, S.I. No. 454 of 1998

 Parental Leave (Disputes and Appeals) Regulations 1999, S.I. No. 6 of 1999

 Parental Leave (Maximum Compensation) Regulations 1999, S.I . No. 34 of 1999 30/1998

Parental Leave (Amendment) Act 2006 13/2006

Enterprise Carer’s Leave Act 2001 19/2001

Paternity Leave and Benefit Act 2016

 Paternity Leave and Benefit Act 2016 (Sections 30 and 31) (Commencement) Order 2016, S.I. No. 434 of 2016

 Paternity Leave and Benefit Act 2016 (Commencement) Order 2016, S.I. No. 435 of 2016

Other Irish Books

Employment Law Forde & Byrne 2009

Principles of Irish Employment Law         Daly & Doherty   2010

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

Periodicals and Reports

Employment Law Yearbook (annual) Arthur Cox

Employment Law Reports

Irish Employment Law Journal

Employment Law Review

Websites

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

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

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

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

Industrial Relations Law Reports

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