Historically, in Ireland there has been no statutory entitlement for fathers to paternity leave. This meant that it was up to the employer and employee to agree a contractual entitlement to paternity leave or alternatively to agree that the employee take annual leave or unpaid leave around the birth of their child. However, the Government pledged in Budget 2016 to introduce a two week paid benefit for fathers to take paternity leave. This entitlement has been signed into law through the Paternity and Benefit Act 2016 and is effective from 01st September 2016.
What is the new position?
Since 01
st September 2016, eligible employees (i.e. relevant parents) are entitled to take two continuous weeks’ of paternity leave (i.e. it cannot be taken in blocks). The entitlement arises upon the birth of a child or upon the adoption of a child.
This leave can be taken at any time during the 26 week period commencing on the date the baby is born (or the date of placement in the case of adoption). In the event of a multiple birth/adoption, the employee is still only entitled to two weeks’ paternity leave.
Which employees are entitled to paternity leave?
Any employee who is considered by the Act to be a “relevant parent” will be entitled to take paternity leave. A "
relevant parent" includes:
- the child’s father,
- the spouse / civil partner / cohabitant of the child’s mother,
- the child’s sole male adopter,
- either parent of a donor-conceived child.
- Same sex couples jointly adopting a child must choose one parent to be the “relevant parent”.
So will I have to pay employees for this time off?
No. This leave will run similar to maternity leave whereby employees are entitled to receive payment from the Department of Social Protection for the duration of paternity leave. Therefore, whilst you might hear about an entitlement to “
paid” paternity leave, this payment will actually come from the State (currently €230).
If an employer wishes, they can pay the employee their full wage for the duration of paternity leave, most commonly done by topping up the social welfare payment.
If I top up maternity leave benefits, will I have to top up paternity leave benefits too?
Many employers will “top up” an employee’s State paid maternity benefit such that the employee will continue to receive their full weekly pay for the duration of their maternity leave. There is nothing to state that you have to do this for paternity leave also. However, it is distinctly possible that an issue of gender discrimination will arise here if you top up maternity leave payments for women but not for men in respect of their paternity leave. Similarly, it could raise sexual orientation discrimination or even civil status discrimination if same sex or cohabiting couples are not having their paternity leave topped up. As such, from the point of view of employment equality legislation, it would be advisable to top up paternity leave in circumstances where you have a policy of topping up maternity leave.
How much notice does an employee have to give of paternity leave?
Similar to maternity leave, the employee must provide 4 weeks advance written notice of their intention to take paternity leave. This notice should be accompanied by, and the employer can insist upon receiving:
- In the case of a birth, a medical certificate which confirms pregnancy.
- In the case of an adoption, a copy of the certificate of placement.
This notification document should also specify the date upon which the employee will be returning to work.
Does the employee have to take the leave at the time of the child’s birth?
No. The employee can choose to take the leave at any time in the 26 week period following the date of birth (or date of placement in cases of adoption).
Are there any other paternity leave related protections for the employee?
Employees on paternity leave will have similar protections as exist for mothers taking maternity leave, such as:
- Any dismissal of an employee whilst on paternity leave is deemed void.
- The legislation also prohibits the penalisation of an employee for taking paternity leave.
- The employee has the right to return to work in the same or similar post.
- The employee has the right to receive any more beneficial terms that they would have received had they not gone on paternity leave
- Employees will accrue annual leave and public holiday entitlements on paternity leave.
- Etc.
In the event of the death of the relevant employee in circumstances where they have not taken some or all of their paternity leave entitlement, that remaining entitlement will transfer to the other parent.
Can an employee postpone their paternity leave?
Importantly, if the date of confinement (in the case of a birth) or date of placement (in the case of adoption) occurs at a later point in time than what was indicated in the employee’s written notice then the employee can postpone their paternity leave.
If the employee is sick then they can postpone their paternity leave until such time as they are well again provided that (a) they have notified their employer of the postponement by at least the date on which the leave was due to commence, and (b) they have provided their employer with an appropriate medical certificate. The paternity leave must commence within 7 days of the date upon which the employee is no longer sick.
Where the relevant child is hopsitalised, the employee may request that their paternity leave be postponed. If the employer agrees then that paternity leave must commence with 7 days of the child being discharged from hospital, or another date that is agreed upon between the employer and employee.
If an employee requests paternity leave, can I postpone it?
Importantly, there is no provision in the Act that allows an employer to postpone paternity leave.
Employers are encouraged to keep abreast of these developments and if you wish to receive or updates on this matter then please do not hesitate to contact our 24 Hour Advice Service on 01 855 50 50 and one of our experienced Employment Consultants will be more than happy to assist.
