Send to a friend
Overview

The Maternity Protection Acts, 1994 and 2004 cover all 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 employees. There is also a provision for a father, as a one-off entitlement, to attend the last two antenatal classes in a set of such classes attended by the expectant employees

  • ante-natal and post-natal care leave

  • protection of employment rights while on maternity leave.

  • periods of notification for different periods of leave

  • paid work breaks/reduction of working hours for breastfeeding employees

  • provision of facilities for breastfeeding employees

  • termination of additional maternity leave in the event of the sickness of the employee

  • postponement and resumption of maternity leave for the father and additional maternity 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 their employer at least 2 weeks’ notice in writing before each appointment and, except in the case of the first appointment, produce their appointment card, or another 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 an unscheduled ante-natal or post-natal examination for urgent medical reasons, they must explain to their employer, no later than one week after the appointment, why the required notice was not given and must also prove that the appointment was kept. Under the Maternity Protection Acts, 1994 and 2004, an expectant employee is entitled to paid time off to facilitate their 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 their pregnancy, due to circumstances beyond their control and through no fault of their own, they shall be entitled to paid time off to attend any missed classes during a subsequent pregnancy. Circumstances beyond the employees’ control would include illness or the premature birth of their child.

The 2004 Act provides expectant fathers or relevant parents who are employees with paid time off to attend the last two ante-natal classes of a set which the expectant employee is attending.

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. If the employee is working nights and has a medical certificate to the effect that they should not work nights during pregnancy or for 14 weeks following childbirth, the employer shall not oblige the employee to do night work during that period and shall transfer the employee to day work or if this is not feasible, grant such an 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 their employer a certificate stating that they have been granted the leave, the date on which it was granted and the expected duration of the leave.

The employee must be paid normal pay by the employer for the first 21 days of their 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 the employee begins maternity leave.

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

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

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

The employer must notify the employee in writing that they can resume work. The health and safety leave will end 7 days after the employee has received such a 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 they 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 the employer, in writing, of their intention to take maternity leave not later than four weeks before the 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 birth.

If the employee decides to change the proposed dates of leave, she may give her employer additional notice, which supersedes 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 maternity leave not later than two weeks before the end of the expected week of the birth of their baby. The minimum duration of leave that must be taken after the end of the expected week of the birth of their baby 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 their employer if, within 14 days of the birth, they notify the employer, in writing, of their intention to take maternity leave.

In the case of  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. The 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). The 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 birth, the employee’s maternity leave will be extended, if necessary, to ensure that the employee has a minimum of four weeks of 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 of required leave remaining from their original maternity leave entitlement. In these circumstances the employee must:

  • notify the employer in writing, as soon as is reasonably practicable, of the proposed extension, and
  • confirm the date of the birth, the period of extension, and the length of the period of extension to the employer in writing as soon as is practically possible after. This amount of time will be adequate to allow for a four-week maternity leave following 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 their employer of their intention to avail of additional maternity leave will be deemed to have done so where they requests the employer to postpone that additional maternity leave due to their child’s hospitalisation.

The decision of whether to allow an employee to postpone the remaining leave is entirely at the discretion of the employer. The employer is required to inform the employee, in writing, whether or not a postponement of leave will be permitted as soon as reasonably 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 the 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 by 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, they will be deemed, from the first day of absence, to have commenced resumed leave. However, the employee may notify their employer in writing, as soon as reasonably practicable, if they do  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, they will not be entitled to the remaining period of resumed leave.

If an employee dies before the expiry of the 40th week of giving birth to a living child, then the father or relevant parent 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 or relevant parent 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 or relevant parent 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 or relevant parent is entitled and intends to take this leave, they must notify their  employer of their  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 or relevant parent’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 their 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.

All rights and entitlements, excluding those related to pay or retirement benefits, will continue to accrue while an employee is away from their job during the 26 weeks of paid maternity leave and the additional 16 weeks of unpaid leave, with the exception of situations where the absence is necessary for the employee to attend antenatal classes, antenatal or postnatal care, or to breastfeed. 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 or relevant parent 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 the birth of their baby , without loss of pay to, at the option of their  employer, either:

  • work breaks for the purposes to breastfeeding in the workplace where facilities are provided in the workplace by the  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 the 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 their 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 their entitlement to breastfeeding breaks, or to reduced working hours for the purposes of breastfeeding, must indicate their intention to do so as soon as reasonably practicable but not later than the date of notification of their intention to return to work. The employee should notify the employer of the intention to return and the date on which the employee expects to return (normally not later than 4 weeks before the employee is due to return to work) and, if requested by the  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 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 €250 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, which offer an employee the option of being paid their maternity benefit directly to their  personal bank account or having the benefit sent directly to their employer.

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 they  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.

 

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 their apprenticeship, probation or training suspended while they are 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.