In 2010 queries brought under the Maternity Protection Acts and the Parental Leave Act made up 40% of all submissions to the Equality Tribunal. While employees’ rights as regards Maternity Leave are in general very familiar to employers other types of Leave are often neglected in terms of the rights they provide to employees and the obligations they place on the employer as they are less commonly availed of. However, as can be seen in the Equality Authority’s report employers need to familiarise themselves with the basic rights and obligations involved to avoid mistakes.
Adoptive Leave– This type of leave comes into play when an employee adopts a child, either domestically or from a foreign nation. It is granted to all female employees or male employees if they are the sole adopter. In cases where the adoptive mother dies the leave can be transferred to the father.
The employee is entitled to 24 consecutive weeks leave and this leave starts on the day of the placement of the child with the parent. As with maternity leave an additional 16 weeks unpaid leave can be taken by the employee at the end of the 24 weeks leave (except in cases of foreign adoption where allowances may be made for travel and meetings). Adoptive leave qualifies as reckonable service and the taking of it will not break an employee’s continuity of employment. The employee is also entitled to time off to attend adoptive meetings and classes.
The employee must give their employer a minimum of four weeks’ notice of their intention to take adoptive leave. The same notice period applies to taking the additional 16 weeks and to when the employee decides to return to work. The employee must also furnish the employer with a certificate of placement no later than four weeks after the actual date of placement.
It is important to remember that employees retain all their employment rights, excluding remuneration, while on adoptive leave, this includes annual leave and public holiday entitlements.
It is vital that upon the employees return to work they return to the same or equivalent job on conditions no less favourable than previously held. Failure to comply with this will be considered grounds for constructive dismissal so this provision must be upheld.
Parental Leave– This has been in the news of late due to the pending introduction of an EU Directive which will increase the entitlement from the current 14 weeks to 18 weeks leave. While Ireland has failed to meet the March 2012 deadline, the Government have promised that it will be enacted by 2013 using the 12 month extension allowed for in the Directive. The employed parent is entitled to special leave with the specific purpose of taking care of their child. The parents must have a minimum of one year’s continuous service to qualify for the full 14 weeks leave. However, employees with at least three months service can take one week’s leave per completed month of service. So, for example, an employee with five months service would be entitled to five weeks leave. The entitlement is per child including a multiple birth. So, an employee with twins will be entitled to 28 weeks leave and in the case of multiple births, the full leave entitlement for the children can be taken within 12 months. Where there is more than one child but they are not a result of multiple births, then the cap of 14 weeks per year applies in this case.
The child in question must be under eight years of age with the exception of an adoptive child that is aged between 6 and 8, in which case the leave entitlement must be taken within two years of the placement order. Both parents are entitled to avail of Parental Leave but the leave is non-transferable between either parents or between children.
Employees on Parental Leave retain all their employment rights bar remuneration. Any annual leave that falls during the Parental Leave period can be taken again at a later date. The employee also retains their Public Holiday entitlements during the period of leave.
The employer has the right to postpone the leave for up to six months if it would have a serious impact on the operation of the business but cannot postpone again without very good reason for example industries affected by seasonal demand, such as farming.
In Ireland Parental Leave is not paid, either by the employer or the State. MEPs have floated the idea of entitling fathers to two weeks paternity leave fully paid (which would be separate to Parental Leave). This has not yet come to fruition as a Directive but has initial approval so may well be in the pipeline.
Force Majeure Leave- Also commonly referred to as emergency leave it is granted when the employee’s presence is required in an emergency relating to a close relative. It is paid leave. The entitlement is limited to a maximum of 3 days in a twelve month period or 5 days in a three year period.
The legislation defines a close relative as a child or adoptive child, a spouse/partner, a sibling, parent or grandparent. The important thing to remember in granting Force Majeure leave is that the employee’s presence must be required, in circumstances when there is no one else available to attend.
Due to the nature of this leave advance notice to the employer of the intention to avail of the leave is not possible nor indeed allowable. The employee must upon their return put in writing their details of their absence and request for the leave. In turn the employer must keep records of the leave taken with the dates and time for eight years.
Carers Leave– Applies to all employees, apprentices and agency workers who have at least one year’s continuous service. It entitles them to take unpaid leave to personally provide full time care for a relevant person. The entitlement takes the form of a minimum of 13 weeks to a maximum of 104 weeks leave. The legislation defines a relevant person as an individual who requires full time care by the Department of Social and Family Affairs. The employee must provide to the employer a certificate from the Department of Social and Family affairs confirming that the relevant person is in need of full time care and attention before availing of the leave.
The legislation allows for the employee to, if desired, attend an educational or training course, take up voluntary work or engage in unpaid employment of a maximum of fifteen hours per week.
The leave can be taken in one continuous block or if not taken in one block, there must be a period of at least 6 weeks in between each block. Employees can take Carers Leave in respect of another relevant person after a six month gap from the end of the last period of Carers Leave.
The employee’s right to annual leave and public holidays only applies to the first thirteen weeks leave. At the end of the leave period the employee must return to the same job at the same place of work or a suitable alternative on conditions no less favourable than before they took the leave.
An employee may work while on Carer’s Leave for up to 15 hours a week provided the income from employment or self-employment is less than a weekly income limit set by the Department of Social Protection (DSP). Alternatively the employee may attend an educational or training course or take up voluntary work for a maximum of 15 hours a week.
If you have any queries about any of the types of Leave mentioned in this article, please feel free to contact the 24 Hour Advice Service on 01 855 5050.
