Maternity leave, and the entitlement to maternity leave, is provided for by the Maternity Protection Act, 1994 and the Maternity Protection (Amendment) Act, 2004. Statutory Instrument 446/1994 (Safety, Health and Welfare at Work (Pregnant Employees) Regulations, 1994 is also highly relevant.
Maternity Leave Entitlement
The minimum entitlement for a pregnant employee is for 26 consecutive weeks of leave. The employee must inform her employer of the intention to take leave and must have a medical certificate confirming the expected date of “confinement”.
Maternity leave must commence not later than before the end of the expected week of “confinement” and will end no earlier than four weeks after the end of the expected week of confinement.
The legislation also provides for an extension of maternity leave if the baby is born later than expected and “additional leave” is also a possibility. This additional leave can be up to 16 weeks but is unpaid and must start immediately after the end of maternity leave.
Payment of wages
There is no entitlement to be paid during maternity leave; however the employee is entitled to receive social welfare payments of 80% of her reckonable earnings for the 26 weeks of maternity leave (but not the additional leave). Some employers will make some payments to employees during maternity leave but this will depend on the industry and the employment contract.
Other entitlements and obligations under the legislation and regulations include paid time off for ante-natal and post-natal care, breastfeeding breaks, and the obligation on the employer to carry out a risk assessment for pregnant women (even where there are no pregnant employees)(Safety, Health and Welfare at Work (Pregnant Employees) Regulations, 1994).
Protective Leave
Maternity leave is protective leave and any termination notice by an employer when the employee is on protective leave is void.
In addition an employee has a general right to return to work to the position held before going on maternity leave, even if there was a transfer of undertaking in the meantime. However this may not necessarily mean going back to the original job but does mean suitable alternative work must be provided. To offer a contract in this situation it must be no less favourable in relation to terms and conditions previously enjoyed and the work required to be done must be suitable and appropriate to that employee.
It is important to note that an employee who is on maternity leave must notify her employer of her intention to return to work (section 28, Maternity Protection Act, 1994)
Unfair Dismissals
All dismissals connected with pregnancy are deemed to be unfair dismissals and this includes employees made redundant during maternity leave and who are not offered suitable alternative employment.
Illness/sickness Related to Pregnancy
Employers cannot apply the normal provisions of their sick pay schemes when dealing with pregnancy related illnesses.
Maternity Leave Disputes
Disputes can be dealt with by the Rights Commissioner in the first instance with appeals to the Employment Appeals Tribunal or the High Court on a point of law only.
Notice
Employees must give at least 4 weeks written notice in respect of
- taking maternity leave
- returning to work
- taking additional maternity leave.