Paternity Leave

Entitlement to Paternity Leave

An employee who is a qualifying parent in relation to a child is entitled to 2 weeks’ leave from his or her employment, known as “paternity leave”, to enable him or her to provide, or assist in the provision of care to the child or to provide support to the relevant adopting parent or mother of the child, as the case may be, or both.

The entitlement to paternity leave also applies in the case of a child who is, or is to be, adopted where the day of placement in respect of the child falls on or after 1 September 2016, or in any other case, where the date of confinement in respect of the child falls on or after 1 September 2016.

A person may not avail of paternity leave where he avails of special adoptive leave for a sole male adopter.


Qualification for Paternity Leave

A qualifying parent in relation to a child, means a person other than the mother of the child who is the father of the child, the spouse, civil partner or cohabitant, as the case may be, of the mother of the child, or a parent of the child under the Children and Family Relationships Act where the child is a donor-conceived child.

A qualifying parent  in relation to a child, also  means a person other than the mother of the child  who is in the case of a child who is, or is to be, adopted  where the child is, or is to be, adopted jointly by a married couple of the same sex, the spouse chosen by that couple to be the qualifying parent for the purposes of this Act, or  in any other case, the spouse, civil partner or cohabitant, as the case may be, of the adopting mother or sole male adopter of the child,

A contract of employment means a contract of service or apprenticeship or a person placed under an agency arrangement. 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 is deemed to be an employee employed by the State or Government, as the case may be, under a contract of service.

An officer or servant of a local authority harbour authority or the Health Service Executive or a member of the staff of an education and training board are also deemed to be an employee employed by the authority, Executive or board, as the case may be, under a contract of service.


Period of Leave

Other than in a case of postponement on account of hospitalisation, the period of leave is a single period of 2 weeks.  Only one person who is a qualifying parent in relation to a child is entitled to paternity leave in respect of that child. This does not prevent paternity leave from being taken by a qualifying parent in the case of adoption in respect of a child by reason only that paternity leave has prior to the adoption of the child, been taken in respect of that child by a person other than that qualifying parent.

Where the birth of a child is part of  a multiple birth, or a person adopts 2 or more children at the same time, a person who is a qualifying parent in relation to the children concerned is entitled to one period of paternity leave in respect of the children concerned.


Notice to Employer I

Entitlement to paternity leave is subject to that qualifying parent/ employee having notified in writing his employer of his intention to take paternity leave. The notice may be given in the case of a child who is or is to be, adopted, as soon as reasonably practicable but not later than 4 weeks before the expected day of placement. It is given in any other case, as soon as reasonably practicable but not later than 4 weeks before the expected week of confinement of the expectant mother concerned.

A qualifying parent who has given a notification to his employer shall in the case of an adoption, other than an intercountry adoption effected or to be effected outside the State, cause his or her employer to be notified in writing as soon as reasonably practicable of the expected day of placement, and supplied as soon as reasonably practicable but not later than 4 weeks after the day of placement with a copy of the certificate of placement that the employed adopting mother or sole male adopter concerned, as the case may be, has supplied to her or his employer.

In the case of an intercountry adoption effected or to be effected outside the State, he shall cause his or her employer to be notified in writing as soon as reasonably practicable of the expected day of placement. He shall supply before the expected day of placement,  a copy of the applicable declaration of eligibility and suitability that the employed adopting mother or sole male adopter concerned, as the case may be, has supplied to her employer. He shall also supply as soon as reasonably practicable after the day of placement particulars in writing of the placement.

Alternatively, in any other case, at the time of the notification or as soon as reasonably practicable afterwards, he shall give to his or her employer or produce for his or her employer’s inspection a copy of the medical, or other appropriate certificate confirming the pregnancy of the expectant mother concerned and specifying the expected week of confinement of the expectant mother concerned that she has given to, or produced for the inspection of, her employer the Maternity Protection Act.


Notice to Employer II

A qualifying parent who has given a notification to his or her employer in the case of an adoption where the adopting mother or sole male adopter concerned, as the case may be, is not an employee or the qualifying parent concerned is a qualifying parent as an adoptive father,  shall cause his or her employer to be  notified in writing as soon as reasonably practicable of the expected day of placement,  to be supplied before the expected day of placement, if not already supplied, with a copy of an applicable declaration of eligibility and suitability, and  supplied as soon as reasonably practicable after the day of placement with particulars in writing of the placement.

Alternatively, in any other case, where the expectant mother is not an employee, at the time of the notification or as soon as reasonably practicable afterwards, he shall cause his or her employer to be supplied with a statement signed by a registered medical practitioner confirming the pregnancy of the expectant mother concerned and specifying the expected week of confinement of the expectant mother concerned.

An employee who has not given a notification to his or her employer or who having given such notification has revoked it may notify the employer concerned (or cause the employer concerned to be so notified) of his or her intention to take paternity leave not later than 4 weeks before the commencement of such leave. A qualifying parent who has given a notification to his or her employer shall at the time of the notification or as soon as reasonably practicable afterwards cause his or her employer to be supplied with the relevant adoption certificate or a copy of the birth certificate issued to the child concerned.


Allocation / Commencement

The period of paternity leave shall commence on such day as the qualifying parent selects in his or her notification, being not earlier than the date of confinement or day of placement, as the case may be, and not later than 26 weeks after such date or day.

Where a qualifying parent is employed under a contract of employment for a fixed term, and that term expires before the day which, otherwise, would be the last day of his or her paternity leave, then the last day of his or her paternity leave shall be the day on which the term expires.

Where the date of confinement occurs in a week that is 4 weeks or more before the expected date of confinement, the qualifying parent in relation to the child concerned shall, where the circumstances so require, be deemed to have complied with the notification requirement if it is given in the period of 7 days commencing on the date of confinement.


Postponement I

Where, as the case may be, the day of placement is postponed, or the date of confinement occurs after the date selected by a qualifying parent in his or her notification given, the qualifying parent shall be entitled to select another date on which the paternity leave shall commence.

Where a qualifying parent who has given notice, becomes sick prior to the commencement of his or her paternity leave and wishes to postpone the paternity leave, he or she may, by notice in writing given to his or her employer as soon as reasonably practicable after becoming sick and accompanied by the relevant evidence in respect of the sickness, postpone the taking of the leave to such time as the qualifying parent is no longer sick.

The entitlement to such postponed leave is subject to the qualifying parent concerned having, notified his or her employer in writing (or caused his or her employer to be so notified) as soon as reasonably practicable but not later than the day on which the postponed leave begins of his or her intention to commence such leave.


Postponement II

Where a qualifying parent is absent from work due to the postponement of paternity leave such absence is to be treated in the same manner as any absence from work of the qualifying parent due to sickness. A period of postponed leave shall, (with minor exceptions), end not later than 28 weeks after the date of confinement or day of placement, as the case may be.

Where the exceptions apply, the period of postponed leave shall commence not later than 7 days after the qualifying parent is no longer sick or on such other date as may be agreed between the qualifying parent and the employer.

An employer may waive the right to receive the notification. The notification may be revoked by a further notification in writing given by or on behalf of the qualifying parent concerned to his or her employer within the period specified for the giving of the notification concerned.


Postponement III

A qualifying parent who is entitled to, or is on, paternity leave may, if the child in connection with whose birth or adoption he is entitled to, or is on, the leave concerned is hospitalised, request in writing his or her employer to postpone the leave or part of it as may be appropriate. An employer may agree to postpone the leave concerned.

If the employer does so, the qualifying parent concerned shall continue to work or, as the case may be, shall return to work on a date agreed by him or 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 by the qualifying parent to the employer.

The leave concerned shall be postponed with effect from the date agreed. The qualifying parent concerned shall be entitled to the leave concerned or part of it, as the case may be, not taken by him or her by reason of the postponement. The postponed leave is to be taken in one continuous period commencing not later than 7 days after the discharge of the child from the hospital or such other date as may be agreed between the qualifying parent and the employer.

An employer who receives a request shall notify the qualifying parent concerned in writing of the employer’s decision in relation to the request as soon as reasonably practicable following the receipt of it.


Postponement IV

Where, following the postponement of leave, an employee returns to work and during the period of the postponement he or she is absent from work due to sickness, the employee shall be deemed to commence postponed leave on the first day of such absence unless he or she notifies his or her employer in writing (or causes his/her employer to be so notified) as soon as reasonably practicable that he or she does not wish to commence such leave. Following such notification, 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 the employee shall not be entitled to the postponed leave.

Entitlement to postponed leave shall be subject to a qualifying parent having notified his or her employer in writing as soon as reasonably practicable but not later than the day on which the leave begins of his or her intention to commence such leave. An employer may waive the right to receive a notification. A notification may be revoked by a further notification in writing given by or on behalf of the qualifying parent concerned to his or her employer within the period specified for the giving of the notification concerned.


Surviving Parent

A qualifying parent who is entitled to paternity leave and has not taken such leave, and who becomes entitled to leave under Maternity Protection Act, may take paternity leave immediately after the end of the latter leave or resumed leave taken.  Entitlement to such paternity leave is subject to the qualifying parent concerned having notified in writing his or her employer (or caused his or her employer to be so notified) not later than the day on which such leave begins of his or her intention to take the leave concerned.

There are equivalent provisions where an entitlement to leave arises in similar circumstances under the Adoptive Leave Act.

Where a qualifying parent entitled to paternity leave in relation to a child dies before the expiry of the twenty-eighth week following the date of confinement or day of placement, as the case may be, the employed surviving parent of the child is entitled to leave from his or her employment, to enable him or her to provide, or assist in the provision of, care for the child.

Where the qualifying parent was an employee, the leave is for a period of 2 weeks or, if applicable, such shorter period of paternity leave that remained to be taken by the qualifying parent at the time of his or her death, and in all other cases, a period of 2 weeks.


Transferred Leave

A period of transferred paternity leave shall commence

  • in the case of a surviving parent entitled to maternity leave, immediately after the end of the maternity leave concerned;
  • in the case of a surviving parent entitled to adoptive leave, immediately after the end of the adoptive leave concerned, or
  • in any other case, within 7 days of the death of the qualifying parent concerned or, where applicable, on the day of placement, whichever is the later.

Entitlement to transferred paternity leave shall be subject to the surviving parent concerned notifying his or her employer in writing not later than the day on which the transferred paternity leave begins of the death of the qualifying parent,) his or her intention to take transferred paternity leave, and the length of the leave to which he or she believes he or she is so entitled under the legislation.

If requested by his or her employer, he must supply his employer, as soon as reasonably practicable, with a copy of the death certificate made in respect of the qualifying parent. A notification may be revoked by a further notification in writing given by or on behalf of the surviving parent concerned to his or her employer within the period specified for the giving of the notification concerned.

The rights to postpone leave apply to a surviving parent who is entitled to, or is on, transferred paternity leave as they apply to a qualifying parent who is entitled to, or is on, paternity leave.


Abuse of Paternity Leave I

Where an employer has reasonable grounds for believing that an employee who is on paternity leave is not using the leave for the permitted purpose, the employer may, by notice in writing given to the employee, terminate the leave. The notice shall contain a statement in summary form of the grounds for terminating the leave and shall specify the day (not later than the end of the period of the leave specified in the notification) nor, subject to this requirement, earlier than 7 days after the date of the receipt of the notice) by which the employee must return to work.

Where paternity leave is terminated on the above grounds, the employee concerned must return to his or her employment on the day specified in the notice. Any period between the date of such return and the end of the period of the leave specified in the notification is deemed not to be paternity leave.

Where an employee has notified his  employer in writing of his intention to take leave and the employer has reasonable grounds for believing that the employee is not entitled to the paternity leave concerned, the employer may, by notice in writing given to the employee, refuse to grant the leave. If the employer does so, the employee is  not entitled to take the leave concerned. The notice shall contain a statement in summary form of the grounds for refusing to grant the paternity leave concerned.


Abuse of Paternity Leave II

Where an employer proposes to give a notice to an employee, the employer shall, before giving the notice, notify the proposal in writing to the employee. The notification shall contain a statement in summary form of the grounds for terminating  or refusing to grant the paternity leave concerned and a statement that the employee may, within 7 days of the receipt of the notification, make representations to the employer in relation to the proposal.

Any such representations made by an employee within this  period shall be considered by the employer before he decides whether to give a notice to refuse or terminate leave, as the case may be, to the employee.

A person shall retain a notice given to him or her under this provision. A person who gives a notice under this provision shall retain a copy of the notice.


Records re Paternity Leave I

An employer must make a record of the paternity leave of his employees indicating the period of employment for each employee and the dates and times in respect of which each employee was on paternity leave. A record of paternity leave so made must  be retained by the employer for a period of 8 years after the relevant paternity leave is taken.  An employer who contravenes this requirement is  guilty of an offence and is liable, on summary conviction, to a class B fine.

Where an offence is committed by a body corporate, and it is proved to have been so committed with the consent or connivance of any person, being a director, manager, secretary or another officer of the body corporate, or a person who was purporting to act in any such capacity, that person, as well as the body corporate, commits an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.


Records re Paternity Leave II

If a person is convicted of an offence under this section the court shall, unless it is satisfied that there are special and substantial reasons for not so doing, order the person to pay to the prosecutor the costs and expenses, measured by the court, reasonably incurred by the prosecutor in relation to the investigation, detection and prosecution of the offence, including costs incurred in respect of the remuneration and other expenses of employees, consultants and advisers.

Proceedings for an offence under this section may be instituted within 12 months from the date of the offence.

Where paternity leave is postponed under the legislation, the time (if any) on leave before such postponement and the time on leave after such postponement shall be treated as separate periods of leave.


Continuity of Employment

During a period of absence from work by an employee while on paternity leave, the employee is deemed to have been in the employment of the employer. Accordingly, while so absent hs shall be treated as if he had not been so absent. Such absence does not affect any right related to the employee’s employment (other than the employee’s right to remuneration during such absence), whether conferred by statute, contract or otherwise.

A period of absence from work whilst on paternity leave is not treated as part of any other leave (including sick leave, annual leave, additional maternity leave, adoptive leave or additional adoptive leave) to which the employee concerned is entitled.

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

An employee is deemed not to be an employed contributor for the purposes of social insurance legislation for any contribution week in a period of absence from work on paternity leave if the employee does not receive any reckonable earnings in respect of that week.


Protective Voidance

Each of the following shall be void:

  • any purported termination of employment of an employee while the employee is absent from work on paternity leave;
  • any purported suspension from the employment of an employee while the employee is absent from work on paternity leave;
  • any notice of termination of the employment of an employee given while the employee is absent from work on paternity leave.

A notice of termination of employment given in respect of an employee or a suspension from employment imposed on an employee—

  • before the employee commences a period of paternity leave, or
  • before the receipt by the employee’s employer of a notification for leave;
  • and due to expire during the employee’s absence from work on the leave concerned

shall be extended by the period of such absence.


No Penalisation for Paternity Leave

An employer must not penalise, or threaten penalisation of, an employee for proposing to exercise or having exercised his entitlement to paternity leave. Penalisation of an employee includes—

  • dismissal, or the threat of dismissal, of the employee;
  • unfair treatment of the employee, including selection for redundancy, or
  • an unfavourable change in the terms or conditions of employment of the employee.

If the penalisation of an employee, in contravention of this provision, constitutes a dismissal of the employee, the employee may institute proceedings under the Unfair Dismissals Act in respect of that dismissal.


Right to Return to Work

An employee who is absent from work while on paternity leave is entitled to return to work

  • with the employer with whom the employee was working immediately before the commencement of the period of absence, or where during the employee’s absence from work there was a change of ownership of the undertaking in which the employee was employed immediately before the absence, with the successor owner of the undertaking at the expiry of the period of absence;
  • in the job, which the employee held immediately before the commencement of that period;
  • under the contract of employment under which the employee was employed immediately before the commencement of that period or, where a change of ownership 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 commencement of that period.

In each case, he is entitled to resume employment under terms or condition

  • not less favourable than those that would have been applicable to the employee, and
  • that 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.

The date of return is the first working day following the date notified below as the notified date of intention to return to work.

Where the job held by an employee immediately before the commencement of the period of absence concerned was not the employee’s normal or usual job, he shall be entitled to return to work, either in his or her normal or usual job or in the job so held as soon as practicable without contravention by the employee or the employer of any provision of a statute or instrument made under statute. A “job” in relation to an employee, means the nature of the work which he or she is employed to do in accordance with his or her contract of employment and the capacity and place in which he or she is so employed.


Notification of Return

Where an employee intends to take paternity leave, the employee shall cause the employer (or, if aware of a change of ownership of the undertaking concerned, the successor) to be notified in writing, at the same time as the employee notifies the employer of intention to take the leave, of the length of the leave that the employee intends to take.

Where an employee intends to take postponed leave, the employee shall cause the employer (or, if aware of a change of ownership of the undertaking, the successor) to be notified in writing  at the same time as the relevant notification is given by the employee for such leave or if the employer, waives the right to receive such notification, not later than the day on which the employee expects to return to work, of the employee’s intention to return to work and of the date on which the employee expects to do so.

Where an employee is absent from work and has been deemed to be on postponed leave, the employee shall notify the employer (or the successor) in writing, as soon as reasonably practicable after the beginning of his absence from work owing to sickness but not later than the date on which the employee expects to return to work, of the employee’s intention to return to work and of the date on which he expects to do so.


Failure to Give Notice

Where, in the opinion of an adjudication officer or the Labour Court, there are reasonable grounds for an employee’s failure to give notification or for an employee giving such notification otherwise than within the specified time limits, the adjudication officer or the Labour Court, as the case may be, shall extend the time for giving the notification.

In the absence of reasonable grounds, failure to give the required notification within the specified time limits, are matters that may be taken into account by an adjudication officer or the Labour Court in determining the employee’s rights under the Unfair Dismissals Act or any other relevant enactment, so far as the remedies of reinstatement, re-engagement or compensation are concerned.

Where, because of an interruption or cessation of work at the place of employment, existing on the date specified in a notification or at the time of the expiration of a period of paternity leave, it is unreasonable to expect the employee to return to work on the date specified or 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.


Denial of Right

Where an employee who, having complied with the obligation to give notice of returning to work, is entitled to return to work but is not permitted to do so by the employer, the following provisions apply. They give the employee a number of alternatives, as may be appropriate to the circumstances

For the purposes of the Redundancy Payments Acts, the employee is deemed to have been dismissed by reason of redundancy, the date of dismissal being deemed to be the expected date of return.

For the purposes of the Minimum Notice and Terms of Employment Act, the contract of employment of an employee is deemed to have been terminated on the expected date of return. The employee is deemed to have been dismissed on the expected date of return, and the dismissal is deemed to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.


Resolution of Disputes

The following does not apply to a dispute relating to the dismissal of an employee. There may be an unfair dismissal claim arising out of the denial of the right to return to work. The following remedies are separate.

A decision of an adjudication officer in relation to a dispute between an employee and the relevant employer relating to any entitlement of the employee to paternity leave (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. If the decision is in favour of the employee then, without prejudice to the power to give such directions, the adjudication officer may order

  • the grant of leave to the employee for such period as may be so specified,
  • an award of compensation (in favour of the employee to be paid by the relevant employer of such amount, not exceeding 2 weeks’ remuneration in respect of the employee’s employment calculated in such manner as may be prescribed by the Minister for Jobs, Enterprise and Innovation, as the adjudication officer considers just and equitable having regard to all of the circumstances, or
  • both such grant and such award.

The Labour Court on appeal from an adjudicator’s decision may make the same types of order. Remuneration includes allowances in the nature of pay and benefits in lieu of or in addition to pay.


Burden of proof

Discrimination, in this context, means—

  • a failure, which gives rise to a dispute, to comply with the legislation;
  • an unfair dismissal, of an employee resulting wholly or mainly from the exercise or proposed exercise by the employee of the right under this Act to paternity leave;

Indirect discrimination is interpreted in accordance with the Employment Equality Act insofar as it relates to discrimination on the family status ground.

In any proceeding in relation to paternity leave before  an adjudication officer dealing with a dispute referred to the adjudication officer by an employee, or  the Labour Court, and any Unfair Dismissals Act claim on the grounds that the dismissal resulted wholly or mainly from the exercise or proposed exercise by the employee of the right to paternity leave, 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.


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

Legislation

Parental Leave Act 1998

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

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

Ø 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

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

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

11/2016

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