#childsafety | Ireland Update: Protective Leave Entitlements – Key Changes and Considerations for Employers

Employees are entitled to a variety of caring and family-related leave under Irish law. 

This area of employment law has undergone significant change in recent years and is set to undergo further expansion in the near future. These changes demonstrate an increasing emphasis on work-life balance and promotion of family-related leave for employees.

We have listed below the various types of leave available to employees and the key obligations for employers in relation to such leave. 

Depending on their personal circumstances, employees may be entitled to the following types of protective leave: 

Maternity Leave 

Pregnant employees are entitled to 26 weeks’ maternity leave and sixteen weeks’ additional maternity leave from commencement of employment.  

The Maternity Protection Acts 1994 and 2004 also entitle such employees to paid time off to receive antenatal and postnatal care and to attend one set of antenatal classes, except the last three classes of the set.

An important obligation imposed by the Maternity Protection Acts 1994 and 2004 on employers is the requirement to carry out a specific risk assessment to identify any particular risks that may affect the pregnant employee’s health and safety or that of the developing child. This risk assessment should be carried out as soon as possible after the employee informs the employer of their pregnancy, even if the employee is working remotely. 

If the risk assessment identifies any risks, steps should be taken to remove them as far as possible. If the risks cannot be removed, the employee should be moved to another suitable role or location if appropriate. If solutions cannot be found to remove the employee from such risks, the employee must be placed on health and safety leave. The employer must pay the employee their normal wages during the first three weeks of health and safety leave. Thereafter, the employer may qualify for health and safety benefit from the Department of Social Protection. 

Recent Changes to Family Leave 

Recent changes have been made to adoptive leave, paternity leave, parent’s leave and parental leave.  

Employee eligibility for adoptive leave has been broadened. Previously, only an adopting mother or sole male adopter was entitled to adoptive leave. Adopting couples may now choose which parent will avail of adoptive leave.

Eligibility for paternity leave has expanded, so it is now consistent with the eligibility criteria for adoptive leave. Now the other parent in an adopting couple who does not avail of adoptive leave may avail of paternity leave in all circumstances. 

The entitlement to parent’s leave for eligible employees has increased from two to five weeks. Employees can now take parent’s leave within the first 24 months of their child’s birth or placement for adoption, an increase from twelve months. Parent’s leave is scheduled to increase to seven weeks in August 2022 and to nine weeks from August 2024. 

Parental leave has been increased to a total of 26 weeks for each child under 12. 

Protective Leave 

A key consideration for employers when dealing with employees on family and caring leave is that such leave is protective leave. Any purported termination of an employee’s employment while on protective leave is void.  

Employers are required to treat employees on protective leave as though they are not absent from work and the employee’s absence on protective leave should not affect any of their rights or entitlements, except for their right to remuneration (with the exception of force majeure leave which is fully paid). 

Right to Return Following Protective Leave 

Employees have a right to return to the job they held immediately before the commencement of such leave under terms and conditions that are not less favourable and which incorporate any improvements to those terms and conditions which the employee would have been entitled to if not absent from work. 

In cases of longer protective leave such as maternity, adoptive or parental leave, it may not be reasonably practicable for the employee to return to the same role they held before the protective leave commenced. This can occur where organisational or restructuring changes have occurred in the employer’s business or part of their business while the employee was absent.

In these circumstances, the employer is required to provide the employee with suitable and appropriate alternative work on terms no less favourable to the employee than the employee previously was entitled to prior to the protective leave.

To be considered suitable alternative work, the role must be suitable for the individual employee and appropriate for that employee to do in the circumstances. Disputes may arise if an employee does not consider the alternative employment to be suitable and appropriate. It is important to consider carefully whether the new functions and duties are of equal overall value and seniority before changing an employee’s role.

Key Tips for Employers 

  • employers should review their family leave policies to ensure that recent changes to adoptive leave, paternity leave, parent’s leave and parental leave have been incorporated;
  • claims taken by employees relating to their family status or protective leave tend to attract relatively generous awards from the Workplace Relations Commission so care should be taken to ensure compliance;
  • although there is no statutory right to receive salary during most protective leave, many employers provide for payment during certain leaves, particularly maternity, adoptive and paternity leave. Payment during protective leave is an increasingly attractive benefit for retention and recruitment of employees. If providing for payment of salary during protective leave, the duration and percentage of payment should be specified. Policies can provide for any social protection benefits that employees may be entitled to receive to be deducted from payment of salary while on protective leave; and
  • the EU Directive on Work Life Balance is due to be implemented before August 2022 and will introduce a right to request flexible working arrangements for carers and working parents of children up to eight years old. Although this will not provide an automatic right to flexible working arrangements, this legislation is consistent with an increasing emphasis on work-life balance.

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