First published: February 27th 2023
Last updated: February 27th 2023

Maternity leave is a notoriously tricky area of employment law to manage correctly.

And it can be a daunting scenario for employers to handle as failure to adhere to the obligations in the maternity leave legislation exposes business owners to the risk of discrimination and unfair dismissal claims.

In this post, we take a look at some key areas of the legislation that you need to put into practice.

How long is maternity leave?

First off, your employee is entitled to take an initial period of 26 weeks of maternity leave and should they wish, they can elect to take another 16 weeks of additional maternity leave.

Do I have to pay employees on maternity leave?

You have no obligation to pay an employee who is on maternity leave but you may choose to do so under the terms of your employment contract.

Employees with sufficient PRSI contributions are entitled to claim maternity benefit from the Department of Social Protection.

Maternity benefit is paid for the 26 weeks of maternity leave but not for the 16 weeks of additional maternity leave.

When does maternity leave begin?

It is really up to the employee as to when is the best time to take their maternity leave. The only legal timeframe to consider is that the employee must take their maternity leave at least two weeks before the due date and for four weeks after the birth of the child.

What if the baby is born earlier than the due date?

If the baby is born four weeks or more earlier than expected, the employee should notify you in writing within fourteen days of the birth. In those circumstances, maternity leave would begin from the date of the birth.

What about antenatal classes?

Employees are entitled to time off work for one set of antenatal classes. This does not include the last three classes in a set (these typically take place after the employee has started her maternity leave). The employee should provide notification in writing of these appointments.

The father is also entitled to attend two antenatal classes without loss of pay.

Do I pay employees for medical appointments connected to the pregnancy?

If an employee has a medical appointment connected with the pregnancy, they are entitled to attend the doctor during working hours without loss of pay. You can ask to receive a note from the doctor confirming the pregnancy and written confirmation of the appointments.

What about health and safety?

You should carry out a risk assessment to ensure pregnant or new mothers who are breastfeeding are not exposed to workplace hazards. You will need to either remove any risks identified or move the employee to a safe location.

If there are no practical alternatives, the employee is entitled to take health and safety leave from work. Health and safety leave may be necessary until the employee takes their maternity leave. Employees have a right to full pay for up to three weeks of health and safety leave. They may be entitled to a social welfare payment for longer periods of health and safety leave.

Employment is protected during maternity leave

This is the key issue for employers to remember when it comes to maternity leave. An employee’s contract of employment is protected during a period of maternity leave. This means you must not dismiss or change the terms and conditions of employment for any pregnancy-related reason.

Provided the employee complies with all her obligations under the maternity leave legislation, she is entitled to return to the same position she held before taking maternity leave and importantly on the same terms and conditions (i.e., pay and benefits).

If you fail to adhere to this principle, you risk facing a WRC claim.

Action your employees should take

A pregnant employee should advise you as soon as possible about the pregnancy and the due date.

You can ask to see a medical certificate confirming the pregnancy and the due date. This should be provided as soon as possible but no later than four weeks before the date the maternity leave is due to start.

Likewise, the employee should give you notification of their intention to take additional maternity leave. This should be given no later than four weeks before the expected date of return.

The return to work

You should also seek confirmation in writing from the employee in relation to her return to work. This should be provided not later than four weeks before the date she intends to return.

Do I have to return the employee to the same position when they come back from maternity leave?

Yes, the employee does have a right to return to the same position as noted above. If something has changed in the workplace and it’s simply not practical to return her to the same position, the employee has a right to a suitable alternative position.

If employees are breastfeeding

Employees who are breast feeding are entitled to paid time off work or a reduction in working hours for breast feeding. This entitlement only applies for the first six months following the birth of the child.

Put a maternity leave policy in place

As you can see, there is a lot to consider when managing a period of maternity leave. This is why the most important thing you can do is to put a Maternity Leave Policy in place. You can specify all the practical steps in one document and ensure you receive adequate notification of when maternity leave and any additional maternity leave starts and ends.

With a clear policy in place for handling maternity leave, both you and your employees will know exactly where to find all the answers to maternity leave queries.

Put your maternity leave policy in place today

If you have any doubts about your legal obligations around maternity leave, make sure to get expert help.

For advice on a specific query or help with updating your documentation, speak with one of our experts today on 1800 719 216 or request a callback here.