The Act to bring into force the EU Directive on Parental Leave was signed into law by The President on 8th July but will not come into operation until the 3rd December 1998. Those familiar with the provisions of Maternity legislation will recognise similarities in this legislation. The Act also provides for what is known as "force majeure leave", about which there has been less discussion and as it will be paid, unlike parental or maternity leave, it has the potential to be of greater significance for employers.
What is Parental Leave?
It is a period of 14 working weeks which may be taken in a continuous period, or with the employer's agreement, in the form of days or hours off work.
Care of the child
The objective is to allow the parent "take care of the child". It is not for the purposes of a sabbatical, or a holiday, or to enable the employee take up another job. If there are "reasonable grounds" to believe that the employee is not using the leave in order to take care of the child, the employer can terminate the leave. It is nevertheless likely to be difficult for employers to prove that a parent is abusing the leave. It should not be forgotten that the Directive itself was framed against an aspiration that it should enable men and woman "to reconcile their occupational and family obligations".
What children are covered?
The legislation will only apply to children born, or in respect of whom an Adoption Order has been made, on or after 3rd June 1996. For the employee to be entitled to take the leave, he/she must be the natural or adoptive parent of the children. The leave applies to each child born or adopted after that date. Only one period of leave applies in the case of twins or multiple births.
Is there a time-limit for taking Parental Leave?
The entitlement to take the 14 weeks parental leave ends on the day the child reaches the age of 5. Special provisions apply in respect of adopted children.
What are the service requirements?
As a general rule, the employee cannot start the period of parental leave until he/she has completed one year's continuous service. The Act introduces some flexibility, however, where an employee has completed three months service and the time by which the leave is to be taken is shortly to expire. Then, a proportion of the leave may be availed of.
Procedural Requirements
- -Before taking the leave, the employee must give 6 weeks' notice in writing.
- -A document confirming this intention must be given not less than four weeks before taking the leave.
- -The "confirmation document" has to be signed by the employer confirming his agreement to the parental leave.
- -After receiving the first notification, the employer may postpone the leave for up to six months if he believes that the granting of it would have "a substantial adverse effect" on the operation of the business.
Employment rights during Parental Leave
- -No entitlement to receive pay or pension contributions.
- -Other employment rights protected.
- -Regarded as still working.
- -Entitled to return to same job under same terms and conditions.
- -If it is not reasonably practicable for the employer to allow the employee return to the same job, there is an entitlement to be offered suitable alternative employment.
Force Majeure Leave
-This is leave with pay, and consists of one or more working days, but which is not to exceed three days in a year, or five days over three consecutive years.
-The leave must arise because of an injury or illness of any of the following relatives:-
- Child or adoptive child
- Spouse / person with whom the
- employee is living as husband or wife
- Person to whom the employee is in loco parentis
- Brother or sister
- Parent
- Grandparent.
-As soon as reasonably practicable, by way of a personal statement to the employer, the employee must confirm that he or she has taken force majeure leave and set out the facts entitling the employee to such leave.
For employers who sometimes face difficulties with employees who do or are suspected of abusing sick leave provisions or practices, there may be apprehension that this form of leave, whilst undoubtedly being framed with the best of intentions, could be open to abuse. As against that, the number of days involved is arguably so small as to reduce any such fears.
Enforcement
- -A "dispute" is primarily to be dealt with by a Rights Commissioner.
- -The claim must be brought within three months of the occurrence of this "dispute". One can foresee questions arising as to whether the "dispute" arose on the day an employee's request for leave was first verbally rejected by a supervisor, or whether it was as at the date the employee gave or received something in writing.
- -The award can be the granting of the particular leave and/or compensation.
- -Compensation is not to exceed 20 weeks' remuneration.
- -If there is a failure to comply with the Rights Commissioner, a Circuit Court Order can be made.
- -Employers will be obliged to keep records of both parental and force majeure leave for a period of eight years.
Comment:
It has been said that by failing to give paid leave to parents, the Act does not give effect to the EU Directive which seeks to promote equality between men and women in the raising of their families or to allow people reconcile the demands of their work and home life. Because the leave is unpaid many parents, especially those on low pay, will not be able to avail of it and those who do will be, almost without exception, women.
This article is intended to provide general guidelines. Specialist advice should be sought about specific facts.
