Employees’ Leave Entitlements – Recent Developments

by Stephen Holst, partner in the Employment Group of McCann FitzGerald

Employers will be well-versed in the numerous types of leave to which employees may become entitled in the course of their employment. However, they may not yet be aware of some recent, forthcoming and potential developments affecting maternity, paternity and parental leave which change or confirm the scope of protection for employees, including some changes from last week’s Budget. A review of policies should be conducted to ensure that relevant employees are treated in accordance with these developments.

Parental Leave
The Parental Leave Acts provide an entitlement for parents to a period of 18 weeks parental leave per child up to 8 years of age (or 16 years of age where the child has a disability or long-term illness). Leave may be taken in two separate blocks, or alternatively can be broken into smaller periods on agreement between employer and employee. An employer may postpone leave by a maximum of 6 months on the basis that the taking of the leave at the specified time would have a substantial adverse effect on the business, though this cannot be employed as a means of delaying the taking of parental leave indefinitely.

The Parental Leave (Amendment) Bill 2017 extends parental leave entitlements from 18 weeks to 26 weeks per qualifying child. In addition, parental leave will now be able to be taken in respect of children up to 12 years of age. A parent who has already taken up the 18 weeks’ entitlement under the existing legislation will be entitled to the additional 8 weeks’ leave introduced under the new Bill. This is likely to become law in the coming months.

The Government in its Budget for 2019 recently announced that it is set to introduce a scheme of parental leave payments for employed and self-employed persons. This ‘Parental Benefit’ will, from November 2019, provide two weeks’ paid parental leave to both the mother and father of new born children at a level of €245 per week. The benefit must be taken in the first year of the child’s life and will be non-transferable between parents. The Government has said it intends to increase this payment up to seven weeks over time.

Maternity Leave
Under the Maternity Protection Acts, pregnant employees are entitled to 26 weeks’ ordinary maternity leave and may avail of an additional period of 16 weeks’ maternity leave. An employer is not obliged to pay women on maternity leave, who may qualify for maternity benefit from the Department of Employment Affairs and Social Protection (the “Department”) during ordinary maternity leave. However, additional entitlements may arise pursuant to the employee’s contract of employment. Employees on maternity leave are also entitled to leave for any public holidays during the period of maternity leave, and also accumulate annual leave during the period of leave.

Section 16 of the Social Welfare Act 2017 recently extended maternity leave entitlement (and maternity benefit) to allow a further period of maternity leave for mothers of babies born prematurely on or after 1 October 2017. This is equal to the length of time between the actual, premature date of birth and two weeks before the expected date of birth. However, these developments do not oblige an employer to pay enhanced maternity benefit to employees during this period.

Separately, the Shared Maternity Leave and Benefit Bill 2018 is at an early legislative stage, and proposes to allow pregnant employees to share their entitlement to ordinary maternity leave (and the associated state benefit) with the father of the child, the spouse, civil partner or cohabitant of the mother of the child.

Paternity Leave
Since the commencement of the Paternity Leave and Benefit Act 2016, new parents (other than the mother of the child) can avail of 2 weeks’ statutory paternity leave from employment or self-employment following the birth or adoption of a child on or after 1 September 2016.

Until recently, there had been some speculation that an employer would be exposed to a claim of gender discrimination where the employer pays enhanced maternity benefit to its female employees who avail of maternity leave but do not pay enhanced paternity benefit to those male employees who avail of paternity leave. Recent case law from the Workplace Relations Commission has confirmed this position.

The Employment Equality Acts provide that nothing in the legislation prevents an employer from conferring benefits on women in connection with pregnancy and maternity. The case of A Complainant –v- A Respondent provides the latest confirmation that the two types of leave are not comparable, maternity leave being granted not only to allow bonding with the child, but also as a protection for the mother against the physiological and psychological effects of pregnancy and motherhood. Given the special protection afforded to pregnancy and maternity under European law, employers are not compelled to provide the same level of benefits to male employees on paternity leave as they do to female employees on maternity leave.

Other leave
Employers should also be aware of other leave entitlements for employees which are not the subject of any recent development but may arise in the course of employment.

Under the Adoptive Leave Acts, adoptive parents are entitled to avail of 24 weeks’ adoptive leave. Employees are also entitled to an additional 16 weeks’ adoptive leave at the end of this period.

The Carer’s Leave Act allows employees to leave their employment temporarily for a period between 13 and 104 weeks to provide full-time care for someone in need of full-time care and attention. Such employees must have worked for their employer for a continuous period of 12 months in order to be eligible for leave. Leave can be taken as one continuous period or spread across a number of periods.

Employees are entitled to be given time off to attend for jury service where they are called by the Courts Service to do so. Such an employee is entitled to be paid and not to lose any other employment entitlements in the course of performing their jury service.

Finally, under the Parental Leave Acts, an employee enjoys a limited right to force majeure leave where, for urgent family reasons, the immediate presence of the employee is indispensable owing to an injury or illness of a close family member. Employees are entitled to be paid during such leave and the maximum period is 3 days in any 12 month period or 5 days in any 36 month period.

What you need to do
The changes outlined above, while intended to support employees’ work/life balance, will in some instances impose additional burdens on employers. Employers need to update their maternity policies to ensure consistency with the new requirements and should be aware of developments regarding parental leave which are likely to become law within the coming months.

About the author
Stephen Holst is a partner in the Employment Group of McCann FitzGerald. Stephen advises clients on critical workforce issues, transactional and contentious issues in the workplace; in particular, on senior executive appointments and terminations; investigations; employee engagement; and the drafting and negotiation of key employment documentation.