The right of employees to take unpaid parental leave is set out in the Parental Leave Acts, 1998-2006 and the European Union (Parental Leave) Regulations 2013 (SI No.81/2013) which were introduced in March 2013. The purpose of the law is to allow parents to take a period of unpaid leave from their employment to care for young children.
How long are employees entitled to be absent on parental leave?
As of 8 March 2013, the amount of parental leaves an employee is entitled to, increased from 14 weeks to 18 weeks.
Who is eligible to take parental leave?
Parental leave is available to full-time, part-time and fixed-term employees who are the parents of an eligible biological or adopted child.
Is the employee’s child required to be a certain age?
The following age requirements in respect of the employee’s child must be met to be eligible for parental leave.
For biological children, parental leave must be taken before the child turns 8 years of age.
For adopted children, parental leave must be taken before the child turns 8 years of age OR if the child was adopted between the ages of 6 and 8, the leave must be taken within 2 years of the adoption order.
For children with a disability or long-term illness, parental leave must be taken before the child turns 16 years of age.
Are employees required to be employed for a certain time before requesting parental leave?
Generally speaking, the employee must have at least one year’s continuous service with the employer before s/he is entitled to take parental leave subject to the following exception.
Where the child is nearing 8 (or 16 if the child has a disability) and the employee has more than 3 months’ service s/he shall be entitled to a period of parental leave pro-rated to their period of service. In practice, this means the employee will be entitled to one week’s leave for every month of continuous employment completed with the employer when the leave begins.
Employees must give 6 weeks’ notice, in writing, of their intention to take parental leave.
The notice must include the following details:
- The date on which the employee intends to begin the leave.
- The length of time that the employee plans to be on parental leave.
- The manner in which the employee proposes to take the leave.
- The employee’s signature.
Employers may waive this notice requirement.
Employers are also entitled to request the employee to provide proof of parentage (in other words, a birth certificate or adoption order).
The confirmation document
Once the leave has been agreed, a confirmation document needs to be prepared which must include the following details:
- The date on which the leave will begin.
- The length of time that the employee will be on parental leave.
- The manner in which the leave will be taken.
- Signatures of the employer and the employee.
Illness of employee while on parental leave
If an employee falls ill while on parental leave and is unable to care for the child, s/he may suspend the parental leave until s/he has fully recovered at which point s/he will resume the parental leave.
Postponement by employers
Employers may postpone the period of parental leave if the leave would have a substantial adverse effect on the business. Any such postponement will not exceed six months from the date previously agreed between the employer and the employee.
The employer must notify the employee, in writing, of the postponement at least 4 weeks before the proposed date that the leave was due to begin and include the business reasons for a postponement in the notice.
Employers may postpone the leave only once in respect of any particular child save in the following circumstances:
- The reason for the postponement is due to seasonal variations in the volume of work, the leave may be postponed twice in respect of the same child.
- The postponement results in the child concerned reaching the age threshold before the end of the leave, the employee retains the entitlement to take the parental leave.
What if employees abuse their entitlement to parental leave?
Employees must use parental leave to take care of the child concerned. If an employer has grounds to believe that a period of parental leave is being used for another purpose, it will be entitled to terminate the leave.
To terminate a period of parental leave, the employer must:
- Notify the employee, in writing, of the intention to terminate, and invite the employee to provide an explanation within 7 days.
- If the explanation provided is unsatisfactory, the leave may be terminated and the employee must be provided with written notification of the reasons for termination.
Are employees entitled to transfer parental leave to the other parent?
The option to transfer parental leave is only available where both parents work for the same employer and is subject to the condition that each parent retains at least 4 weeks of their individual parental leave (in other words 4 weeks of the 18-week entitlement is non-transferable).
The return to work
Employers must be mindful that an employee who has availed of his/her entitlement to parental leave is entitled to return to the position held immediately prior to the leave commencing. The employee is entitled to resume employment under the same contract/terms and conditions of employment.
If the same position is not available, the returning employee must resume work on terms which are no less favorable.
Employees are also entitled to benefit from any improvement in terms and conditions of employment which were implemented during their period of parental leave.
Right to request flexible working
When employees return from a period of parental leave, they enjoy the right to request a change in their working pattern. The employee must give the employer 6 weeks’ notice of his/her request to avail of a more flexible working pattern.
Employers must reply to requests for flexible working hours within 4 weeks of receipt of the request.
Employers are not obliged to accept the request for flexible working but any such refusals must be supported by justifiable business reasons.
An unreasonable refusal to vary working patterns by an employer attracts a risk of a discrimination claim on the ground of family status.
Disputes, employment law risks
Parental leave disputes which lead to dismissal are heard by the Workplace Relations Commission (WRC) under the Unfair Dismissal Acts, 1977 to 2015.
The WRC may order the employer to award up to 2 years’ salary in compensation to the employee or if appropriate to reinstate or re-engage the employee.
If an employee is dismissed for exercising parental leave rights, s/he will not be required to have one year’s continuous service.
Disputes under the Employment Equality Acts 1998 to 2015 may also arise where employees allege that they have been treated differently from other employees after exercising their right to take parental leave. Such claims are typically based on the ground of family status
The WRC may award compensation of up to 4 years’ remuneration if the claim consists of two different heads. 2 years’ compensation would be attributable to harassment and 2 years to victimization for instance.
Disputes regarding parental leave which fall short of dismissal or discrimination are heard by the WRC.
The WRC may instruct that the leave is taken by the employee as requested or award up to 20 weeks’ compensation, or both.
Changes to parental leave entitlements look likely
The Parental Leave (Amendment) Bill 2017
The existing parental leave entitlements look set to be amended by the Parental Leave (Amendment) Bill 2017 (the Bill), which has passed through the Dáil and is now before the Seanad. The principal amendment proposed by the Bill is an extension to the duration of the parental leave. The proposed changes are:
- The entitlement to parental leave for each parent is to increase from 18 to 26 weeks – if passed, the additional 8 weeks will also be available to parents who have already taken their 18 weeks’ parental leave.
- The age at which parental leave must be taken for each child has increased from 8 to 12, (it remains the same age for children with a disability or long-term illness).
- It has been proposed that there be a level of payment for parental leave. At a minimum, it is proposed that payments would match sick pay provisions if they are already in place. There are proposals for the government to provide 2 weeks’ paid parental leave with further payments scheduled on a phased basis.
Breaking up periods of parental leave
Under the Bill, parental leave may be taken in one continuous period of 26 weeks or in 2 separate blocks, provided one of the blocks is no less than 6 weeks in duration. If the employee would like to take the leave for less than 6-week blocks, for example, one day a week, this must be agreed and the employer has the right to refuse. In cases where the employee has more than one child entitling him or her to parental leave, the employer is permitted to insist on a 10-week gap being taken between each period of parental leave.
A further update will be provided once the Bill is signed into law.
Force majeure leave
Force majeure leave is a statutory employee entitlement to paid time off work for urgent family reasons, owing to the injury or illness of a close relative.
The law on force majeure leave is also set out in the Parental Leave Acts, 1998-2006.
It is important to note that force majeure is a statutory entitlement, and not leave which is at the employer’s discretion. Force majeure is not to be confused with compassionate leave which employers may grant on an ad hoc basis. Employees are either entitled to statutory force majeure leave, as their particular situation is covered by the law, or they are not.
Urgent and immediate family reasons
Employees will only be entitled to take force majeure leave where “for urgent family reasons, owing to an injury to or the illness of a specified person… the immediate presence of the employee … is indispensable.”
Given the emphasis on “immediate” and “indispensable”, it is difficult to envisage too many scenarios where force majeure leave could last for more than one day. The WRC and the Labour Court have nonetheless on occasion found that certain circumstances will give rise to an entitlement to consecutive force majeure days.
Let’s take a closer look at the requirements
Urgent and immediate
If the employee had advance notice of the scenario, then s/he will not satisfy the urgent and immediate requirement. In these circumstances, alternative work arrangements like annual leave should be considered.
The employee must be able to show that their presence was indispensable and they needed to stay off work to aid the specified person in getting medical assistance.
An employee is entitled to avail of force majeure leave in respect of the following persons only:
- A child or adoptive child of the employee.
- The spouse of the employee, or a person with whom the employee is living as husband or wife.
- A person to whom the employee is in loco parentis.
- A brother or sister of the employee.
- A parent or grandparent of the employee.
- Persons in a relationship of domestic dependency, including same-sex partners.
Who decides what is an emergency?
Employment law courts will view the situation from the employee perspective
The courts have determined in a number of cases that the circumstances which lead to a request for force majeure leave will be viewed from the employee perspective.
A number of decisions have been handed down confirming that in the final analysis, it is for the parent to decide as to whether his or her immediate presence is indispensable.
Force majeure – know the limits
As the courts will defend the right of employees to request force majeure leave, it is therefore important for employers to note the restrictions on how often requests for force majeure leave can be made.
Employees are only entitled to take 3 days of force majeure leave in a consecutive 12-month period or 5 days in a consecutive 36-month period.
Make family-friendly work arrangements work for your business
As the world of work continues to evolve, it is important that employers know both their own rights and the rights of their employees when it comes to family-friendly working arrangements. While cultural acceptance of flexible work practices is relatively weak in Ireland, those sectors that do encourage transparent and fair work-life balance policies do experience notable increases in productivity.
The key is to put effective policies in place and to ensure that they are clearly communicated to employees. Clarifying your rights as an employer by putting them down on paper reduces your exposure to employment law risks and future proofs your business for the road ahead.
To speak with one of Peninsula experts about putting bespoke employment policies in place for your business, call 1890 252 923.