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Overview

The Maternity Protection Acts, 1994 and 2004 cover all female employees who are pregnant, have recently given birth or who are breastfeeding. The Acts cover full-time, part-time and fixed-term employees, as well as agency workers.

The purpose of the Acts is to detail the provisions for maternity leave including:

  • maternity leave and additional maternity leave entitlements
  • paid leave to attend ante-natal classes for expectant mothers. There is also a provision for a father, as a one off entitlement, to attend the last two ante natal classes in a set of such classes attended by the expectant mother
  • ante-natal and post-natal care leave
  • father’s leave in the case of a mother’s death
  • protection of employment rights while on maternity leave/father’s leave
  • periods of notification for different periods of leave
  • paid work breaks/reduction of working hours for breastfeeding mothers
  • provision of facilities for breastfeeding mothers
  • termination of additional maternity leave/leave for the father in the event of sickness of the mother/father
  • postponement and resumption of maternity leave/leave for the father and additional maternity leave/ leave for the father where the child is hospitalised
  • returning to work when leave is ended.

An employee is entitled to paid leave for ante-natal and post-natal care. The employee must give her employer at least 2 weeks’ notice in writing before each appointment and, except in the case of the first appointment, produce her appointment card, or other appropriate document, if requested. The entitlement to time off for post-natal medical appointments applies during the 14 weeks immediately following the birth.

If the employee requires, due to urgent medical reasons, an unscheduled ante-natal or post-natal examination, the employee must explain to her employer, no later than 1 week after the appointment, why the required notice was not given and also must prove that the appointment had been kept.

Under the Maternity Protection Acts, 1994 and 2004, an expectant mother is entitled to paid time off to facilitate her attendance at one set of ante-natal classes (other than the last three classes in a set). Where a pregnant employee is unable to attend a full set of ante-natal classes (other than the last three) during her pregnancy, due to circumstances beyond her control and through no fault of her own, she shall be entitled to paid time off to attend any missed classes during a subsequent pregnancy. Circumstances beyond the mother’s control would include illness or the premature birth of her child.

The 2004 Act provides expectant fathers who are employees with paid time off to attend the last two ante-natal classes of a set which the expectant mother is attending. This right is only applicable, in respect of fathers, during one pregnancy, and is therefore, a one-off entitlement.

Employers are required by 2007 Regulations under the Safety, Health and Welfare at Work Act, 2005 to carry out a risk assessment of the workplace in relation to:

  • pregnant employees
  • employees who are breastfeeding
  • employees who have recently given birth

Employers must assess health and safety risks to such employees in the workplace and then eliminate or provide protection against the risks. If the employer finds that there is a risk to the health, safety or welfare of such an employee, the employee must be transferred to more suitable work. In particular if the employee is working nights and has a medical certificate to the effect that she should not work nights during pregnancy or for 14 weeks following childbirth, the employer shall not oblige her to do night work during that period and shall transfer her to day work or if this is not feasible, grant such employee leave.

If the transfer is not technically or objectively feasible, or the move cannot reasonably be required on substantiated grounds, or there is no other suitable work available for the employee, the employee is entitled to health and safety leave.

The employee who has been granted this leave will receive from her employer a certificate stating that she has been granted the leave, the date on which it was granted and the expected duration of the leave.

The employee must be paid her normal pay by her employer for the first 21 days of her health and safety leave. If the period of Health and Safety leave extends beyond 21 days the employee will be entitled to Health and Safety Benefit under Social Welfare provisions.

If a pregnant employee goes on health and safety leave, the leave ends immediately before she begins maternity leave.

If an employee who is given health and safety leave because she is breastfeeding, should cease breastfeeding, then she must, at the earliest possible time, notify her employer in writing that she has ceased breastfeeding.

If an employee who is on health and safety leave, realises at any time that her condition is no longer vulnerable to the risk that caused her to receive health and safety leave, she must notify her employer in writing as early as is practicable that she is no longer at risk.

When an employer receives notification that an employee, who is on health and safety leave, is no longer at risk he/she must take all reasonable measures to facilitate the employee returning to work in the same job she held before she went on leave.

The employer must notify the employee in writing that she can resume work. The health and safety leave will end 7 days after the employee has received such notification or as soon as the employee resumes work, whichever is earlier.

If an employer introduces any measures that remove the risk that caused an employee to go on health and safety leave, the employer must notify the employee, in writing, that she can return to work or to suitable work.

The health and safety leave will end 7 days after the notification is received, or if it is earlier, on the day the employee returns to work or takes up other suitable work.

Employees are entitled to maternity leave from day one of employment. Subject to the following notification requirements, an employee is entitled to 26 weeks maternity leave known as Ordinary Maternity Leave:

  • the employee must inform her employer, in writing, of her intention to take maternity leave not later than four weeks before her maternity leave is due to begin
  • the employee must, at the time of notification, produce a medical certificate confirming the pregnancy and the expected week of birth, known as the date of confinement.

If the employee decides to change the proposed dates of leave, she may provide further notice to her employer, which supercedes the previous notification.

An employee is entitled to up to 16 weeks additional maternity leave, if she chooses to take it. This leave must commence immediately at the end of ordinary maternity leave. This entitlement is subject to the employee informing her employer, in writing, of her intention to take additional maternity leave. Notification must be given either:

  • at the same time as notice to take maternity leave is provided, or
  • at any time not later than four weeks before she is due to return to work from maternity leave.

Should an employee decide to change the proposed dates of additional maternity leave, she may provide further notice to her employer which will supercede the previous notification. However, such notification must be provided no later than four weeks before she would be due to return from maternity leave if she were not taking additional maternity leave. No maternity benefits or allowances are payable from the Department of Social Protection, hence additional maternity leave is commonly known as unpaid maternity leave.

The Acts provide that where an employee falls ill during her additional maternity, or where she has notified of her intention to take additional maternity leave and then falls ill she may make a request to her employer to terminate the additional maternity leave. Where an employee is permitted to transfer from additional maternity leave, and commence sick leave, that leave must be treated in the same manner as any other absence on sick leave. Where additional maternity leave is terminated, the employee forfeits her right to the remainder of the additional maternity leave.

An employee is required under legislation to commence her maternity leave not later than two weeks before the end of the expected week of confinement. The minimum duration of leave that must be taken after the end of the expected week of confinement is four weeks.

If the birth occurs four or more weeks before the expected week of confinement, the employee will be deemed to have complied with the requirement of notifying her employer if, within 14 days of the birth, she notifies the employer, in writing, of her intention to take maternity leave.

In the case of a premature birth which occurs before the employee's maternity leave was due to start, the employee's paid maternity leave entitlement of 26 weeks will be extended to account for the number of weeks before the maternity leave start date that the baby arrived. For example, if the employee was due to begin maternity leave in week 37 of the pregnancy, but the baby arrives in week 30, the employee's maternity leave will now be deemed to begin on the date the baby was born. Her original 26 week maternity leave entitlement will be extended by seven weeks (the difference between the actual birth and the original start date of maternity leave). Her overall entitlement to paid maternity leave will therefore extend to 33 weeks.  

If an employee gives birth in a week that is later than the expected week of confinement, the employee’s maternity leave will be extended if necessary, to ensure that the employee has a minimum of four weeks maternity leave after the birth. This extension will only be given if the birth is so delayed that the employee does not have the four weeks required leave remaining from her original maternity leave entitlement. In these circumstances the employee must:

  • notify her employer in writing, as soon as is reasonably practicable, of her proposed extension, and
  • confirm to her employer in writing as soon as is reasonably practicable after the date of the confinement, the period of extension and the duration of the period of extension. This period will be sufficient to allow for four weeks maternity leave after the birth.

Where the child, in connection with whose birth the employee is on maternity leave or is entitled to or is on additional maternity leave, is hospitalised, then the employee in question may request the employer, in writing, to postpone either:

  • part of the maternity leave
  • part of the maternity leave and the additional maternity leave or
  • the additional maternity leave or part of it.

To be entitled to postpone maternity leave or additional maternity leave, an employee must already have availed of at least 14 weeks maternity leave, 4 of which must have been taken since the end of the week of confinement. An employee who has not notified her employer of her intention to avail of additional maternity leave will be deemed to have done so where she requests the employer to postpone that additional maternity leave due to her child’s hospitalisation.

The decision whether to allow an employee to postpone her remaining leave is entirely at the discretion of the employer. The employer is required to inform the employee, in writing, whether or not postponement of leave will be permitted as soon as reasonable practicable following receipt of a request.

The maximum period of postponement of leave is 6 months from the return to work date. The employer is entitled to request an employee to provide a letter from the hospital in which the child is hospitalised, confirming the hospitalisation. The employer is also entitled to request a letter, or other appropriate document, from the hospital or the child’s GP confirming that the child has been discharged from the hospital in order to allow the employee to resume postponed leave.

Where the employer does agree to the postponement, then the employee concerned must return to work on a date agreed between both parties. The return to work date must not be later than the expiry of the employee’s maternity leave or additional maternity leave entitlements. The remaining leave is postponed from the agreed date, and the employee will be entitled to take the remaining postponed leave (known as "resumed leave") not later than seven days after the discharge of the child from hospital.

Unless an employer waives the right to notification of the intention to take resumed leave, an employee must provide written notification as soon as reasonably practicable but not later than the day on which the resumed leave begins, of the intention to commence such leave. This notice can be revoked by the employee through providing the employer with written notification of revocation, not later than the date on which the resumed leave was due to commence.

Where an employee falls ill during the period of postponement she will be deemed, from the first day of absence, to have commenced resumed leave. However, the employee may notify her employer in writing, as soon as reasonably practicable, that she does not wish to commence resumed leave. In such circumstances the employee may commence sick leave, and the absence on sick leave must be treated in the same manner as any other absence from work due to illness. However, where the employee opts to take sick leave, she will not be entitled to her remaining period of resumed leave.

If a woman dies before the expiry of the 40th week of giving birth to a living child, then the father of the child if employed under a contract of employment is entitled to leave. The father’s period of leave must commence within 7 days of the mother’s death.

The father should notify his employer, in writing or otherwise, not later than the day on which his leave begins, of the death of the mother, of his intention to take leave and the length of leave that he believes he is entitled to. This notification can be revoked by the employee no later than the day on which the leave is due to begin.

If the employer so requests, the father must supply, as soon as is practicable, a copy of the certificate in respect of the mother’s death and the birth certificate in respect of the child.

If the mother dies before the end of the 24th week following the week of the birth the father is entitled to a period of leave ending at the end of that 24th week. In this instance, the father is also entitled to a further 16 weeks additional leave.

If the father is entitled and intends to take this leave, he must notify his employer of his intention either at the time of the first notification to take leave, or not later than 4 weeks before the date which would have been the father’s expected date of return to work. This notification can be revoked no later than 4 weeks before the date on which he is expected to return to work.

If the mother dies at any time after the 24th week following the week of the birth, the father is entitled to a period of leave ending at the end of the 40th week.

Employees who lose a baby before 24 weeks of pregnancy (generally referred to as a miscarriage) will not be entitled to take maternity leave, whether or not the employee had informed her employer of a maternity leave commencement date. In practical terms, employees may take a period of sick leave, in relation to which normal notification rules will apply.

Employees who lose a baby after the 24th week of pregnancy (generally referred to as a stillbirth) will still be entitled to take 26 weeks' maternity leave and 16 weeks' additional maternity leave. Maternity Benefit will also still be payable, subject to normal eligibility requirements.

While an employee is absent from the workplace during the 26, and additional 16 weeks’ of maternity leave, she will be entitled to continue accruing all rights and entitlements other than those in respect of remuneration or superannuation benefits, save in circumstances where the absence is due to the employee attending ante-natal classes, ante natal or post natal care, or for breast feeding purposes.

Therefore, the employee maintains all employment rights, whether imposed by contract, statute or otherwise, and continues to accrue service, annual leave, public holidays etc.

The same provisions apply during leave to which a father is entitled upon the death of the child’s mother.

The Acts provide that an employer will not be required to provide facilities for breastfeeding in the workplace if the provision of such facilities would give rise to a cost, other than a nominal cost, to the employer.

The Acts and relevant Regulations, provide that a female employee will be entitled, for up 26 weeks after the date of her confinement, without loss of pay, to, at the option of her employer, either:

  • work breaks for the purposes to breastfeeding in the workplace where facilities are provided in the workplace by her employer or
  • a reduction of working hours to facilitate breastfeeding other than in the workplace.

Where the employer provides breastfeeding facilities, an employee is entitled to work breaks without loss of pay equivalent to one hour per day. These may be arranged in any of the following ways:

  • one break of 60 minutes per day
  • two breaks of 30 minutes each per day
  • three breaks of 20 minutes each per day or
  • in another way which is agreed by the employee and her employer.

Where breastfeeding facilities are not provided by the employer, an employee is entitled to a reduction of hours, without loss of pay, equivalent to one hour per day, for breastfeeding purposes. This reduction may comprise of any of the following:

  • one period of 60 minutes per day
  • two periods of 30 minutes per day
  • three periods of 20 minutes each per day or
  • in another way agreed by the employee and her employer.

A part-time employee will receive a pro-rata entitlement to time off, or a reduction in working hours.

A breastfeeding employee who proposes to exercise her entitlement to breastfeeding breaks, or to reduced working hours for the purposes of breastfeeding, must indicate her intention to do so as soon as reasonably practicable but not later than the date of notification of her intention to return to work. The employee should notify her employer of the intention to return and the date on which she expects to return (normally not later than 4 weeks before she is due to return to work) and, if requested by her employer, provide the birth certificate of the child concerned, or another document establishing the date of the birth of the child.

During normal maternity leave, or additional maternity leave, an employee does not have any legal entitlement to receive remuneration from their employer. The expression "paid maternity leave" is often used to refer to the first 26 week period of leave (subject to extension in the case of a premature birth - see above) in respect of which qualifying employees will be entitled to receive a maternity benefit from the Department of Social Protection. This benefit is subject to an employee meeting the PRSI contribution criteria set by the Department.

The current rate of maternity benefit is €240 per week.

Some employers do, however offer a benefit of paying employees during their “paid” maternity leave, this is known as “topping-up”. In these circumstances the employee is paid maternity benefit by Social Welfare and the employer tops it up to ensure that the employee’s normal earnings are maintained for part of, or the full duration of, maternity leave. This method is generally recognised by Social Welfare, who offer an employee the option of being paid her maternity benefit directly to her personal bank account or having the benefit sent directly to her employer.

An employee who is absent from work on a period of protective leave will be entitled to return to work when the period of leave ends, subject to the following:

  • the employee will be entitled to return to work with his/her previous employer, or if there has been a change in ownership, then with the new succeeding owner
  • the employee will be entitled to return to the job that the employee held immediately before he/she went on leave. “Job” in relation to an employee means the nature of the work which she is employed to do in accordance with her contract of employment and the capacity and place in which she is so employed
  • the employee will be entitled to return to work under the contract of employment under which she was employed immediately before the start of that period of leave. If there has been a change of ownership the contract of employment must be identical to the contract under which he/she had immediately before the start of that period and either way the terms and conditions must not be less favourable than those that would have been applicable had he/she not been absent on protective leave. Furthermore, the terms and conditions of employment to which the employee returns must also incorporate any improvements to which the employee would have been entitled had he/she not been absent.

An employee is entitled to return to his/her normal job regardless of whether it was the job held immediately before leave commenced, so long as it does not contravene any laws, such as health and safety regulations. Where the job held by the employee immediately before going on leave was not the employee’s normal or usual job the employee shall be able to return to work to either the normal/usual job or the job the employee held immediately before going on leave as soon as practicable without the employer contravening statute.

If it is not reasonably practicable for an employer to give an employee his/her original job or its equivalent on his/her return, the employee will be entitled to be offered suitable alternative work under a new contract of employment with the original employer, an associate employer, or the succeeding employer if there was a change of ownership. Work will be considered suitable alternative work if:

  • the work to be done is suitable to the employee concerned and can be appropriately carried out by the employee in the particular circumstances and
  • the terms or conditions of the contract relating to the place where the work is to be carried out, the capacity in which the employee is to be employed and any terms or conditions of the employment are not less favourable than those of his/her contract of employment before the period of absence from work on protective leave began and
  • the terms and conditions of the contract incorporate any improvement to the terms and conditions of employment to which the employee would have been entitled if he/she had not been so absent from work during that period.

During a period of absence from work by an employee whilst on maternity leave cannot have their employment terminated and nor can they be served with notice of termination of employment or be advised that they are to be suspended from employment.

Where an employer provides an employee with either a notice of termination of employment or notice of suspension from employment, before receipt of the employee’s notification to the employer that he or she will take maternity leave, an extension of maternity leave, additional maternity leave, a variation in the allocation of a minimum period of maternity leave, postponement of leave due to the hospitalisation of the child, antenatal or post-natal care, ante-natal classes, time off or reduced hours for breastfeeding or father’ leave, and where that notice is due to expire during the period of absence by the employee the period of notice shall be extended by the period of such absence from work.

A person employed under a contract of apprenticeship or probation in that employment or who is undergoing training in relation to that employment, will have his/her apprenticeship, probation or training suspended while he/she is absent from work on leave and the apprenticeship, probation or training will resume when the employee returns to work.

Where a fixed term contract expires during the leave period, the expiry date is at the end of the fixed term contract. The leave period ends on the date that the contract expires.

The Government looks likely to introduce a measure in Budget 2019 which will provide two weeks’ paid parental leave to both the mother and father of new born children.

Precise details of the policy have not been released but reports indicate that the new parental leave entitlement will incorporate the following:

  • A two-week period of paid parental leave provided to both the mother and father of the child
  • Benefit to be in in line with existing maternity benefit of €240 per week
  • Must be taken within the first year of the infant’s life
  • Non-transferable, each parent must use their own allocation or forfeit it
  • New entitlement will be in addition to existing maternity, paternity, adoptive and parental leave entitlements.

A report earlier in the year indicated that the proposed paid parental leave initiative would commence with two weeks’ paid parental leave with further incremental increases year on year.

The scheme will not be mandatory though it is clear that the aim of the policy is to increase uptake of parental leave by both men and women and to comply with the EU’s proposals to reduce the gender participation gap across the EU workforce.

More updates will follow as soon as further details emerge.