Parental Leave

Persons Entitled to Parental Leave

Employees and certain others are entitled to parental leave rights. An “employee” for this purpose means a person employed under a contract of service or apprenticeship. The following are deemed to be employees for the purpose of parental leave;

  • a person places by an employment agency who personally performs any work or service for a business
  • a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces or a civil servant
  • an officer or servant of a local authority of a harbour authority, health board or  member of the staff of an education and training board

An employee who is a qualifying parent in respect of a child is entitled to leave from his or her employment known as parental leave for a period of 18 working weeks to enable him or her to take care of the child.


Service Required

A period of parental leave shall not commence before a time when the employee concerned has completed one year’s continuous employment with the employer from whose employment the leave is taken.

Where an employee will not have completed one year’s continuous employment with his or her employer on the latest day for commencing a period of parental leave, but  has completed 3 months of such employment on the latest day for commencing a period of such leave the employee shall, subject to the Act, be entitled to parental leave for a period of one week for each month of continuous employment that he or she has completed with the employer at the time of the commencement of the leave.


Leave is Per Child

An employee is entitled to parental leave in respect of each child of which he or she is a qualifying parent.  A person who is a qualifying parent in more than one capacity in respect of a child is not entitled to parental leave in more than one such capacity in respect of the child.

Where two or more qualifying parents in respect of a child are entitled to parental leave in respect of the child, none of the parents is entitled to the parental leave of any other parent in respect of the child, or transfer any part of the period of his or her parental leave to any other parent in respect of the child.

Where two or more qualifying parents in respect of a child are entitled to parental leave in respect of the child and the parents are each employed by the same employer, then each qualifying parent shall, subject to the consent of the employer concerned, be entitled to transfer part, not exceeding 14 working weeks, of the period of his or her parental leave to any other qualifying parent in respect of the child.


Statutory Minimum Leave

Greater or enhanced rights may be given by the terms of the employment contract.  Rights are commonly granted on more favourable term, in particular, in the public sector.

A provision in any agreement is void in so far as it purports to exclude or limit the application of the legislation is inconsistent with it. 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 the Act is deemed to be so modified as to be not less favourable.


Duration

A period of parental leave must end not later than the day on which the child concerned attains the age of 8 years. In the case of a child who is the subject of an adoption order, and has, on or before the date of the making of that order, attained the age of 6 years but not 8 years, not later than the expiration of the period of 2 years beginning on that date.

If the child concerned has a disability or a long-term illness, it ends not later than the day on which the child attains the age of 16 years, or ceases to have that disability or long-term illness or any other disability or long-term illness, whichever first occurs.

Disability in relation to a child, means an enduring physical, sensory, mental health or intellectual impairment of the child such that the level of care required for the child is substantially more than the level of care that is generally required for children of the same age who do not have any such impairment;

Long-term illness’, in relation to a child, means a long-term illness, the effect of which is that the level of care required for the child is substantially more than the level of care that is generally required for children of the same age who do not have any such long term illness.


Manner Taken I

Parental leave may consist of a continuous period of 18 weeks or 2 separate periods each consisting of not less than 6 weeks, and not exceeding [18 weeks in total.

With the agreement of the employer or representatives of the employer and other employers and the employee or representatives of the employee and other employees, it may consist of a number of periods each of which comprises—

  • one or more days on which, but for the leave, the employee would be working in the employment concerned,
  • one or more hours during which, but for the leave, the employee would be working in the employment concerned, or
  • any combination of the above periods.

Where parental leave in respect of a child is taken by an employee then in respect of that child the employee is not entitled to take the second period of parental leave unless not less than 10 weeks have elapsed since the first period of parental leave ended.


Manner Taken II

The employer concerned (or representatives of the employer and other employers) and the employee concerned (or representatives of the employee and other employees) may agree to a shorter period than the 10 weeks above either in a particular case or a class of cases.

Parental leave taken by an employee shall be such that the number of hours during which, but for the leave, the employee would be working in the employment concerned equals

  • the number of hours during which the employee worked in the employment concerned in such continuous period of 18 weeks before the commencement of the leave as may be determined by the employee concerned and the employer, or
  • if the employee and the employer fail to determine a period for the above purposes 18 times the average number of hours per week during which the employee worked in the employment in each of the periods of 18 weeks  ending immediately before the commencement of each week in which he or she takes any of the leave.

12 Month Limit

Where an employee is entitled to parental leave in respect of more than one child and the children concerned are not children of a multiple births, the period of parental leave taken by him or her in any period of 12 months shall not, without the consent of the employer, exceed the 18-week period.

This limitation does not apply to

  • any period of parental leave proposed to be taken by an employee in respect of a child who has attained the age of 7 years before or on the date of commencement of the provision and before the 1st anniversary of that date, if it would prevent the employee from taking all or any part of that parental leave after that date, or
  • any period of parental leave proposed to be taken by an employee in respect of a child who has attained the age of 15 years before or on the commencement of the legislation and before the 1st anniversary of that date if it would prevent the employee from taking all or any part of that parental leave after that date.

Holidays

Where any holiday (other than a public holiday) to which an employee is entitled falls during a period of parental leave of the employee and on a day when (but for the leave and the holiday) the employee would be working in the employment concerned, the holiday is taken at such other time as may be determined by the employer.

Where any public holiday to which an employee is entitled falls during a period of parental leave of the employee and on a day when (but for the leave and the holiday) the employee would be working in the employment concerned, a day is added to the period of parental leave that the employee is entitled to take.

In determining a period of holidays (including public holidays) to which the employee concerned is entitled or days on which he or she is absent from work on sick leave, maternity leave, adoptive leave, or force majeure leave is excluded and a corresponding number of days immediately before the commencement of the period is included and time spent on parental leave by the employee is deemed to be time spent by him or her at work in the employment concerned.


Notice of Leave I

When an employee proposes to take parental leave, he or she shall, as soon as reasonably practicable but not later than 6 weeks before the commencement of the leave, give notice in writing of the proposal to his or her employer.  The notice shall specify the date of commencement of the parental leave concerned and its duration and the manner in which it is proposed to be taken and is signed by the employee concerned.

Before the date of the confirmation document concerned, an employee may, by notice in writing signed by him or her and given to his or her employer, revoke a notice given by him or her and, if the employee does so, he or she is not entitled to take parental leave at the time specified in the latter notice.

Where leave purporting to be, parental leave is taken by an employee who is entitled to parental leave but who has not complied with the notice requirement in relation to the leave, the employer may, at his or her discretion, treat the leave as parental leave and the legislation shall apply accordingly.


Notice of Leave II

An employer shall retain a notice given to him and shall give a copy of it to the employee concerned who shall retain it.  An employee who has given a notice to his or her employer shall if the employer so requests, furnish to the employer such evidence as the employer may reasonably require in relation to

  • the date of birth of the child in respect of whom the parental leave is sought,
  • the employee being a qualifying parent of the child, and
  • if relevant, the disability of the child.

Where an employee proposes to take parental leave in respect of a child, then the notice   required to be given by the employee is treated as

  • one such notice if the employee complies with that requirement by giving one notice specifying the 2 periods of parental leave proposed to be taken, and
  • 2 such notices if the employee complies with that requirement by giving 2 notices each specifying one of the periods of parental leave proposed to be taken.

Employer Confirmation

Where an employee has given a notice to his employer, the latter shall, not less than 4 weeks before the commencement of the parental leave concerned, prepare and sign a document (a confirmation document) specifying the date of commencement of the leave, its duration and the manner in which it will be taken.

Where leave is treated as parental leave in a case where the employer waives the requirement for notice or due notice, a confirmation document in relation to the leave is prepared and signed by the employer and the employee concerned as soon as may be.

An employer shall retain a confirmation document signed by him or her and shall give a copy of it to the employee concerned who shall retain it.

When a confirmation document has been prepared and signed  the employee concerned is not entitled to work in the employment concerned during the period of parental leave specified in the document.


Variation I

However, if, after a confirmation document is given (whether or not the period of parental leave to which it relates has commenced) the employer concerned so agrees, the leave or part of it may be postponed to such time as may be so agreed upon. The period of such leave may be curtailed in such manner and to such extent as may be so agreed upon or the form of the leave may be varied in such manner as may be so agreed upon. In such a case the confirmation document is amended accordingly.

If the employee concerned becomes sick such that the employee is unable to care for the child the subject of the parental leave to which the confirmation document relates, then the employee may, by notice in writing given to the employer concerned or his or her successor, as soon as is reasonably practicable after becoming sick, and accompanied by the relevant evidence in respect of the sickness—

  • if the period of parental leave has not commenced, postpone the taking of the leave to such time as the employee is no longer sick, or
  • if the period of parental leave has commenced, suspend the taking of the balance of the leave to such time as the employee is no longer sick, and in such a case the confirmation document is deemed to be amended accordingly.

Variation II

Where parental leave is curtailed as agreed above the parental leave not taken by reason of the curtailment may be taken at such other time as may be agreed upon by the parties concerned.

If, solely because of the postponement or suspension of the taking of parental leave, or of the taking of the balance of parental leave, as the case may be, the period of the parental leave ends by virtue of the child’s age, then the event which causes that period to so end is deemed, to have occurred after the end of that period.

Required evidence in relation to an employee, means  a medical certificate  stating that the employee named in the certificate is, by reason of the sickness specified in the certificate, unable to care for the child named on the certificate, and  signed by a registered medical practitioner. If the employee does not have a medical certificate, it may be such evidence as the employer concerned or his or her successor may reasonably require in order to show that the employee is, by reason of sickness, unable to care for the child concerned.


Employer Postponement I

Where an employee has given a notice and the employer is satisfied that the taking of parental leave at the time specified would have a substantial adverse effect on the operation of his or her business, profession or occupation by reason of

  • seasonal variations in the volume of the work concerned,
  • the unavailability of a person to carry out the duties of the employee in the employment,
  • the nature of those duties,
  • the number of employees in the employment or the number thereof whose periods, or parts of whose periods, of parental leave will fall within the period specified in the said notice or
  • any other relevant matters,

the employer may, by notice in writing given to the employee not later than 4 weeks before the intended commencement of the leave, postpone the commencement of the leave to such time not later than 6 months after the date of commencement specified in the relevant notice under as may be agreed upon by the employer and the employee.


Employer Postponement II

Before giving such notice to an employee, an employer shall consult with the employee in relation to the proposed postponement of parental leave.

The employer’s notice shall contain a statement in summary form of the grounds for the postponement of the commencement of the parental leave concerned.

The commencement of parental leave in respect of a particular child may not be postponed more than once under this provision unless a ground for the postponement is seasonal variation in the volume of the work concerned. Where that is a ground for the postponement, such commencement in respect of a particular child may not be postponed more than twice.

An employer shall retain a copy of a notice under this section given by him or her to an employee of his or hers, and the employee shall retain the notice.


Abuse of Parental Leave I

The entitlement to parental leave is subject to the condition that it is used to take care of the child concerned.  Where an employer has reasonable grounds for believing that an employee of his who is on parental leave is not using the leave for that purpose, the employer may, by notice in writing given to the employee, terminate the leave.

The notice must contain a statement in summary form of the grounds for terminating the leave. It shall specify the day (being a day not later than the date of the end of the period of the leave specified in the confirmation document concerned nor, subject to the foregoing requirement, earlier than 7 days after the date of the receipt by the employee concerned of the notice).

Where parental leave is terminated above, the employee concerned shall return to his or her employment on the day specified in the notice concerned and any period between the date of such return and the date of the end of the period of the leave specified in the confirmation document concerned is deemed not to be parental leave.


Abuse of Paternal Leave II

Where an employee gives his or her employer a notice and the employer has reasonable grounds for believing that the employee is not entitled to the parental leave concerned, the employer may, by notice in writing given to the employee, refuse to grant the leave to the employee and, if the employer does so, the employee is not entitled to take the parental leave concerned.

The employer’s notice shall contain a statement in summary form of the grounds for refusing to grant the parental leave concerned.

Where an employer proposes to give the above notice  to an employee of his or hers, the employer shall, before giving the notice, give notice in writing of the proposal to the employee and the notice shall contain a statement in summary form of the grounds for terminating, or, as the case may be, refusing to grant, the parental leave concerned. He shall also give a statement that the employee may within 7 days of the receipt of the notice make representation to the employer in relation to the proposal. Any such representations made by an employee to an employer within the period aforesaid is considered by the employer before he or she decides whether to give a notice  to the employee.

A person shall retain a notice under this section given to him or her and a copy of a notice under this section given by him or her.


Force Majeure Leave I

An employee is entitled to leave with pay from his or her employment, known as “force majeure leave”, where, for urgent family reasons, owing to an injury to or the illness of certain specified persons, the immediate presence of the employee at the place where the person is, whether at his or her home or elsewhere, is indispensable.

The specified persons are

  • a person of whom the employee is the parent or adoptive parent;
  • the spouse of the employee or a person with whom the employee is living as husband or wife;
  • a person to whom the employee is in loco parentis;
  • a brother or sister of the employee;
  • a parent or grandparent of the employee, and
  • a person other than one specified above who resides with the employee in a relationship of domestic dependency.

Force Majeure Leave II

A person who resides with an employee is taken to be in a relationship of domestic dependency with the employee if, in the event of injury or illness, one reasonably relies on the other to make arrangements for the provision of care, and the sexual orientation of the persons concerned is immaterial.

When an employee takes, force majeure leave, he or she shall, as soon as reasonably practicable thereafter, by notice in the prescribed form given to his or her employer, confirm that he or she has taken such leave, and the notice shall specify the dates on which it was taken and contain a statement of the facts entitling the employee to force majeure leave.

Force majeure leave shall consist of one or more days on which, but for the leave, the employee would be working in the employment concerned but shall not exceed 3 days in any period of 12 consecutive months or 5 days in any period of 36 consecutive months.

A day on which an employee is absent from work on force majeure leave in employment for part only of the period during which he or she is required to work in the employment on that day is deemed to be one day of force majeure leave.


Protection

An employee shall, while on parental leave, be regarded for all purposes relating to his or her employment (other than his or her right to remuneration or superannuation benefits or any obligation to pay contributions in or in respect of the employment) as still working in the employment and none of his or her other rights relating to the employment is affected by the leave.

Absence from employment while on parental leave is not treated as part of any other leave from employment (including sick leave, annual leave, adoptive leave, maternity leave and force majeure leave) to which the employee concerned is entitled.

Where an employee who is on probation in his or her employment or is undergoing training in relation to that employment or is employed under a contract of apprenticeship takes parental leave, and his or her employer considers that the employee’s absence from employment while on parental leave would not be consistent with the continuance of the probation, training or apprenticeship, the employer may require that the probation, training or apprenticeship be suspended during the period of the parental leave and be completed by the employee at the end of that period.

An employee shall, while on force majeure leave, be regarded for all purposes relating to his or her employment as still working in the employment concerned and none of his or her rights relating to the employment is affected by the leave.  Absence from employment while on force majeure leave is not treated as part of any other leave from the employment (including sick leave, annual leave, adoptive leave, maternity leave and parental leave) to which the employee concerned is entitled.


Return to Work

On the expiration of a period of parental leave (being the period specified in the confirmation document concerned) the employee concerned is entitled to return to work

  • with the employer with whom he or she was working immediately before the start of the period or, where during the employee’s absence from work there was or were a change or changes of ownership of the undertaking in which he or she was employed immediately before the absence, the owner on the expiration of the period;
  • in the job that the employee held immediately before the commencement of the period, and
  • under the contract of employment under which the employee was employed immediately before the commencement of the period or with the successor, that is identical to the contract under which the employee was employed immediately before such commencement, and (in either case) under terms or conditions  not less favourable than those that would have been applicable to the employee; it shall incorporate any improvement to the terms or conditions of  employment to which the employee would have been entitled, if he or she had not been so absent from work.

Where the job held by an employee immediately before the commencement of a period of parental leave to which he or she is entitled was not the employee’s normal or usual job, he or she is entitled to return to work, either in his or her 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 provision made under statute.

Where, because of an interruption or cessation of work at an employee’s place of employment, existing on the expiration of a period of parental leave taken by the employee, it is unreasonable to expect the employee to return to work on such expiration, 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.


Requested Changes

An employee who exercises or proposes to exercise an entitlement to return may request changes to his or her working hours or patterns, or both, to apply for a set period of time following his or her return to work. An employee who proposes to request such changes, shall as soon as reasonably practicable but not later than 6 weeks before the proposed commencement of the set period concerned, give to his or her employer a request in writing signed by the employee, which shall specify the nature of the changes requested and the date of commencement and duration of the set period requested.

An employer who receives a request shall consider that request, having regard to his or her needs and the employee’s needs. As soon as reasonably practicable but not later than 4 weeks after such receipt, the employer shall inform the employee in writing that the request has been granted or refused, prepare and sign an agreement setting out  the changes to the employees working hours or patterns, or both, as the case may be, and  the date of the commencement and duration of the set period, as may be agreed between them.

An employer shall retain the agreement and shall give a copy of it to the employee concerned who shall retain it. Before the date on which an agreement is signed, the employee may, by notice in writing signed by him or her and given to the employer, revoke a request given by him or her.


Suitable Alternative

Where an employee is entitled to return to work but it is not reasonably practicable for the employer to permit the employee to return in the manner required, the employee is entitled to be offered by his or her employer suitable alternative employment under a new contract of employment.

Work under a new contract of employment constitutes suitable alternative work for the purposes of the Act if

  • it is of a kind that is suitable in relation to the employee concerned and appropriate for the employee to do in the circumstances,
  • the terms or conditions of the contract relating to the place where the work under it is required to be done,
  • the capacity in which the employee concerned is to be employed and any other terms or conditions of employment are not less favourable to the employee than those of his or her contract of employment immediately before the start of the period of absence from work while on parental leave, and
  • incorporate any improvement to the terms or conditions of employment to which the employee would have been entitled if he or she had not been so absent from work during that period, and
  • the continuity of service is preserved.

No Penalisation

An employer shall not penalise an employee for proposing to exercise or having exercised his or her entitlement to parental leave, force majeure leave or any other entitlement under the legislation.Penalisation of an employee includes dismissal of the employee, unfair treatment of the employee, including selection for redundancy, and an unfavourable change in the conditions of employment of the employee.

If a penalisation of an employee, constitutes a dismissal of the employee, the employee may institute proceedings under the Unfair Dismissals Acts in respect of that dismissal instead of the statutory remedies under the Act.

An employee who is entitled to return to work in the employment concerned in accordance but is not permitted by his or her employer to do so  is deemed to have been dismissed on the date on which he or she was entitled to so return to work and the dismissal is deemed, for the purposes of the Unfair Dismissals Acts, to have been an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. He is deemed for the purposes of the Redundancy Payments Acts  to have had his or her contract of employment with his or her employer terminated on the date aforesaid.


Enforcement

A decision of an adjudication officer under the  Workplace Relations Act in relation to a dispute between an employee and his or her employer relating to the entitlements of the employee under the Act (or any matter arising out of or related to those entitlements or otherwise arising under the Act) or a decision of the Labour Court n appeal  may contain such directions to the parties concerned as the adjudication officer or the Labour Court, as the case may be, considers necessary or expedient for the resolution of the dispute or matter and such other redress as the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all of the circumstances and the provisions of the Act

The order accordingly may specify

  • the grant to the employee of parental leave of such length to be taken at such time or times and in such manner as may be specified,
  • an award of compensation in favour of the employee concerned to be paid by the employer concerned, or
  • both a grant of leave and an award.

Compensation

An award of compensation is of such amount as the adjudication officer or the Labour Court, as the case may be, considers just and equitable having regard to all the circumstances but shall not exceed 20 weeks’ remuneration in respect of the employee’s employment calculated in such manner as may be prescribed.

A decision of an adjudication officer or the Labour Court may, if the adjudication officer or the Labour Court, as the case may be, considers it reasonable having regard to the illness or another incapacity of the employee concerned or any other circumstance, include a direction that parental leave be taken at another time.

It may contain a direction that the commencement of parental leave be postponed for a specified provided that the adjudication officer is satisfied that the taking of such leave at the time specified in the notice concerned would have a substantially adverse effect on the employer and considers that it is reasonable to give such a direction in the circumstances. The Labour Court on appeal has similar powers.

A decision may contain a direction that the period of parental leave concerned be curtailed or that its form be varied or its commencement postponed for a specified period, or parental leave not taken by reason of being so curtailed be taken at a specified time, provided that the Labour Court considers that the giving of such direction is reasonable due to there being a serious and substantial change in circumstances affecting the employer or the employee.


Codes of Practice

The Equality Authority may, or if requested to do so by the Minister shall prepare for submission to the Minister a draft code of practice for the purposes of providing practical guidance as to the steps that may be taken for complying with one or more provisions of the Act. Before submitting a draft code of practice to the Minister, the Equality Authority shall consult such other Minister of the Government or other person or body as the Equality Authority considers appropriate or as the Minister may direct.

After a draft code of practice has been submitted,  the Minister may by order declare that the draft is an approved code of practice for the purposes of the Act, or as amended by the Minister after consultation with the Equality Authority, is an approved code of practice for the purposes of the Act. In any proceedings under the Act, an approved code of practice is admissible in evidence and, if any provision of the code appears to be relevant to any question arising in the proceedings, it is taken into account in determining that question.

All functions that, were vested in the Employment Appeals Tribunal were transferred to the Workplace Relations Commission in so far as they related to an employment enactment. All functions that were vested in the Employment Appeals Tribunal are transferred to the Labour Court in so far as they related to appeals determined by the Employment Appeals Tribunal.


Dismissal

An employee who is entitled to return to work in the employment concerned in accordance with the Parental Leave Act but is not permitted by his or her employer to do so is deemed to have been dismissed on the date on which he or she was entitled to return to work as aforesaid. The  dismissal is deemed, for the purposes of the Unfair Dismissal Acts,  to have been an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

He is also deemed for the purposes of the Redundancy Payments Acts, to have been dismissed by reason of redundancy on the date aforesaid, and are deemed for the purposes of the Minimum Notice and Terms of Employment Acts, to have had his or her contract of employment with his or her employer terminated on the date aforesaid.

For the purpose of the Organisation of Working Time Act, any period during which the employee was absent from work while on parental leave or force majeure leave does not count as part of the reference period for the purpose of calculating working hours or rest periods.


Records

An employer shall make a record of the parental leave and force majeure leave taken by his or her employees showing the period of employment of each employee and the dates and times upon which each employee was on parental leave or force majeure leave. The record is retained by the employer concerned for a period of 8 years and, if the Minister specifies the form of such records, the record is in that form or a form to the like effect.

Notices or copies of notices, required to be retained by a person is retained by the person for a period of one year.

An employer who contravenes these obligations is guilty of an offence and is liable on summary conviction to a fine.


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

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