by Orla O’Leary, Senior Associate in the Employment Law & Benefits Team, Mason Hayes & Curran
Tuesday, 2 August 2016, heralded a significant development in the Irish legal landscape, paternity leave is now recognised as a new legal right in Ireland. Paternity leave may be taken at any time from 1 September 2016 and must be taken within 26 weeks of the birth/placement of the child.
We discuss the measures introduced by the legislation.
Who is entitled?
An employee considered to be a “relevant parent” of a child will be entitled to two weeks’ consecutive leave from their employment to care for their child.
A “relevant parent” includes the child’s father, the spouse/ civil partner/ cohabitant of the child’s mother or sole male adopter as well as parents of a donor-conceived child. Same sex couples jointly adopting a child must choose one parent to be the “relevant parent”.
Only one period of leave will apply where there are multiple births or adoptions at the same time.
In the unfortunate case of a stillbirth or miscarriage following the 24th week of pregnancy, the entitlement to paternity leave and benefit remains available,provided it is taken within 26 weeks from that time and subject to the employee satisfies the PRSI requirements.
The employee must notify their employer at least 4 weeks before the date on which they wish to take paternity leave. A medical certificate setting out the expected date of birth or confirming the birth must be provided or, in the case of an adoption, proof of the date of placement.
The employer must certify the employee’s paternity leave by completing form PB 2: Employer Certificate. This certificate should be submitted to the Paternity Benefits Section of the Department of Social Protection with the paternity benefit online application.
Paternity benefit of €230 per week is payable by the Department of Social Protection. Eligibility for payment will be based on the same PRSI contribution requirements as maternity benefit.
The benefit must be claimed within 26 weeks of the date of birth, or date of placement if the child is adopted, and is paid for two consecutive weeks.
Paternity benefit should be applied for at least 4 weeks before the leave begins. Self-employed individuals should submit an application 12 weeks prior to the leave.
Notably, employees are required to apply for a Public Services card in order to obtain the paternity benefit. Employees can register for this card on mywelfare.ie.
Pay during paternity leave
Employers are not obliged to pay employees during paternity leave. Top-up payments may be provided on terms and conditions decided by the employer. If the employer continues to pay the employee during paternity leave, the employer should require the employee to sign a mandate instructing the Department of Social Protection to pay the benefit directly to them or alternatively, simply pay the employee the difference between their salary and the paternity benefit.
Postponement of paternity leave
Paternity leave may be postponed if the employee becomes sick before the leave begins, provided the employee has complied with their notice requirements. The employer should be notified as soon as possible and provided with a medical certificate. The leave will then begin no later than seven days after the employee is able to return to work, or on another date agreed between the employer and employee, but it must commence within 26 weeks of the birth/placement.
If the baby is hospitalised, paternity leave and benefit may be postponed for a maximum of 6 months. Where a baby is born prematurely, and the employee wishes to change their leave dates, a letter from the employer confirming the new leave dates and date of birth/ placement of the child, must be sent to the Paternity Benefit Section of the Department of Social Protection.
It is recommended that employers put in place a policy covering paternity leave, stating how employees can apply for it, whether it will be topped up by the employer and any other relevant provisions. It is advised that employers treat those employees availing of paternity leave in an equal manner to employees taking maternity or adoptive leave.
Employers are reminded that for the duration of the leave, the employee must be considered as being in the employment of the employer. Paternity leave will not affect any right related to the individual’s employment other than their right to remuneration.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
About the author
Orla is a Senior Associate in the Employment Law & Benefits Team. Orla joined Mason Hayes & Curran in 2012 having previously practised at another top Dublin firm for four years post qualification.
Orla advises clients across a wide range of sectors including financial institutions, manufacturing companies, retail outlets, public sector bodies and Universities. Orla also advises clients on a variety of employment law issues including the negotiation of service contracts and severance agreements with senior executives, managing disciplinary and grievance issues and dealing with complaints of bullying and harassment in the workplace. Orla regularly represents clients before the Employment Appeals Tribunal, the Labour Relations Commission, the Equality Tribunal and the civil courts.