Friday, September 9, 2016
The Paternity Leave and Benefit Act 2016 has introduced paternity leave to Ireland. An employee who is a relevant parent is entitled to a single period of two weeks leave from his or her employment as well as receipt of a social welfare benefit.
Employers should familiarise themselves with the rules governing Paternity Leave as it is likely that increasing numbers of parents will request the leave in the months and years ahead.
The following categories of persons constitute a relevant parent under the Act:
The purpose of paternity leave is to allow the relevant parent to provide care to the child, or to provide assistance to the mother of the child, or the relevant adopting parent of the child. The legislation applies in respect of children where the date of confinement, or the date of placement in cases of adoption, falls on or after 01 September 2016.
Paternity Leave Period
If an employee wishes to take paternity leave, he or she must notify the employer in writing no later than four weeks prior to the expected date of confinement or date of placement. The date on which paternity leave commences should not take place before the birth or placement of the child and should not take place later than 26 weeks after the birth or placement of the child.
Where the mother gives birth at least four weeks earlier than the expected due date, the relevant parent may take paternity leave if he or she notifies the employer within seven days of the mother giving birth. Alternatively, if the mother does not give birth on her due date (i.e. a late delivery) the relevant parent may select an alternative date to commence paternity leave. This provision also applies in adoption – where the date of placement has been postponed, the relevant parent may select another date to commence paternity leave.
Where the relevant parent becomes sick before taking paternity leave, he or she can notify the employer and postpone the paternity leave. In this scenario, paternity leave cannot be postponed beyond a 28 week period after the birth or placement of the child.
Where the relevant parent dies up to 28 weeks after the birth or adoption of the child, paternity leave benefit can be transferred to the surviving parent if he or she is employed. The surviving parent must notify his or her employer of the intention to take the transferred paternity leave.
Purpose of the leave
Where an employer believes that the relevant parent is using his or her paternity leave for another purpose, the employer is entitled to terminate the leave by giving notice in writing stating the date by when the relevant parent is due to return to work.
It is required that an employer maintains a record of paternity leave taken by employees.
Where an employee is on paternity leave, the employee is deemed to be in the employment of the employer during this time. However, where an employee is:-
and the employer considers the absence as a result of paternity leave to be inconsistent with these aims, the employer is entitled to suspend the probation, training, or apprenticeship during the leave period.
An employer cannot attempt to terminate or suspend a contract of employment of an employee while he or she is on paternity leave. Likewise, an employer cannot dismiss or threaten to dismiss an employee as a result of exercising their entitlement to paternity leave. An employer cannot treat an employee unfairly or impose an unfavourable change in the terms and conditions of employment of an employee as a result of exercising entitlement to paternity leave.
A parent has a right to return to work after the expiration of the paternity leave period. He or she is entitled to return to the same position held immediately before the commencement of the paternity leave, under terms and conditions no less favourable than the employee was entitled to prior to taking paternity leave.
The weekly rate of paternity benefit is €230 (subject to adequate PRSI contributions). There is no statutory obligation on an employer to pay paternity leave.
If the relevant parent’s employment ceases during the paternity leave period, the relevant parent will continue to receive paternity benefit as normal.
Only one paternity benefit is payable in relation to a child. In instances of multiple births, only one paternity benefit period and benefit is applicable.
There may be grounds for discriminatory treatment if an employer does not maintain a paternity leave policy that is equivalent to the employer’s maternity leave policy (and/or equivalent with other relevant special leave policies). It is therefore recommended that employers draft a paternity leave policy in such a manner that employees availing of paternity leave are treated equally to employees taking other types of leave.
Advice to Employers
It is recommended that employers update their policies and procedures to ensure that the new paternity rights are covered. Such a policy should state the scope of the benefit as well as the procedures that apply for employees who seek to avail of paternity leave.