Legal Right To Paternal Leave
The Paternity Leave and Benefit Act 2016 was recently passed by the Dáil and marks a significant step forward for paternal rights in the workplace. As of the 1st of September 2016, a relevant parent, as defined under the Act, will be statutorily entitled to two weeks paid paternity leave from their employment. The Act has extended the scope of the entitlement available to mothers so as to include inter alia the father of the child. This article will set out the key features of the legislation and steps that employers should take in order to prepare for the Acts enactment.
The Paternity Leave and Benefit Act 2016: An Overview
From the 1st of September 2016, a relevant parent will be entitled to two weeks paid paternity leave from their employment in order to assist in the caring of the child and/or supporting the mother, adopting mother or male adopter of the child. The payment that the employee will be entitled to receive from the Department of Social Protection is €230 per week – the same as the current maternity leave benefit available to mothers. This entitlement is subject to the condition that the employee having made sufficient PRSI contributions. The leave period may be taken at any stage within twenty-six weeks from the arrival of the child.
Who Is Entitled?
A “relevant parent” entitled to paid employment leave has been defined under the legislation as the father of the child, the spouse, civil partner or co-habitant of the child’s mother. This equally applies in the case of same sex couples, that of adopted children and to the parents of donor conceived children. It must be noted that this benefit extends also to self-employed individuals. The leave period is limited to two weeks even in the case of multiple births. Furthermore, it applies to one of the parents only. The only possible exception to this would be in the case of a biological father who takes paternity leave where the subsequent adopting father who would also be entitled to the leave period.
Notice Period Requirements
The leave may be applied for by the employee as soon as reasonably practicable but not later than four weeks before the intended leave period is to commence. They will be required to produce a medical, or otherwise appropriate certificate, confirming the pregnancy of the expectant mother and the expected date of birth of the child. In the case of adoption, proof of the date of placement will be required. In the event that the child is born or placement occurs before the date that the leave was scheduled to commence, the employee will be deemed to have given sufficient notice if it is done within a period of seven days from the event. Conversely, if the child is born or the placement occurs at a date later than the date on which the leave was due to commence, the employee may select another date on which it can commence.
Should the employee become sick before the leave period commences, the leave may be postponed provided that they give the employer written notice and proof of their sickness within a reasonable time frame. This is subject to the condition that it is not at a time later than the date on which the leave was due to commence. The leave may be postponed to a time no later than twenty-eight days after the arrival of the child. If the child requires hospitalisation, the leave may also be postponed to a time that is agreed between the employee and employer.
Abuse of Leave
It must be noted that the purpose of the employment leave is for the employee to care for the child and/or assist their respective partner in doing so. If an employer has reasonable grounds for believing that the employee is using the leave for another purpose, they are entitled to terminate the employees leave by way of written notice.
It is advisable that employers put in place a paternity leave policy that sets out the process to be followed by employees seeking paternal leave. This should include the requisite time frames and proofs that must be adhered to as outlined above, the internal processes for applying for the leave and the complaints resolution procedure to be followed in the event of a dispute. In this regard, the complaint may be referred to the Workplace Relations Commission.
Employers are not under an obligation to pay the employee paternal benefit while on leave. This will be provided by the Department of Social Protection, although they do have discretion to provide a top up payment to the employee. However, should the employer decide to provide such a payment, it would be advisable that it is done in accordance with the existing maternity leave policy and does not discriminate between male and female taking their respective leave periods.
Employers will be obliged to maintain records of all paternal leave that has been granted to employees. These records must indicate the length of the employee’s employment and dates and times on which the paternal leave was granted. Failure of an employer to comply with this requirement will be an offence which may result in the employer being liable to a maximum fine of €4,000.
© Alban O’Callaghan, McKeever Solicitors, 18th August 2016
This article is a general review of the law on the subject and is not intended to be a complete statement of the law. Specific legal advice must be sought on a case by case basis. For further information, please contact Alban O’Callaghan or Patrick Kelly.
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