New legislation extends right to parental leave

All working fathers and mothers in the State now have an individual, non-transferable right to at least three months' leave for child-care purposes over and above other family-related leave such as maternity leave.

Following the coming into effect yesterday of the Parental Leave Act 1998, workers who avail of parental leave are entitled to return to work, without any loss of employment rights. Moreover, workers are now also entitled to paid emergency or force majeure leave for urgent family reasons. In a paper delivered at a seiminar held by NIFAST, the occupational and safety training consultancy, in Dublin last Friday, barrister and lecturer in law, Ms Ivana Bacik, said the words "without pay" were deleted from the Bill during the Dail debates "as it was suggested that those words could have prevented local agreements on parental leave with pay. Thus, the entitlement carries no right to pay, but the Act does not prohibit the granting of paid leave by individual organisations".

The Act applies to "all employees who work under contracts of employment". This includes people working under a contract of apprenticeship or "a contract between an individual or an employment agency, whereby the individual performs work for a third party," she said.

Employees must normally have worked for at least one year with the same employer before they become entitled to parental leave, although there are exceptions. Employees can normally only avail of parental leave before a child is five years old.

Parental leave only applies to the parents of children born, or adopted, on or after June 3rd, 1996. Workers are entitled to parental leave "in respect of each child of which he or she is the natural or adoptive parent", she said.

Workers are entitled to 14 weeks' parental leave for every eligible child, "exclusive of holidays, or time spent on maternity leave, adoptive leave or sick leave," Ms Bacik said.

Parental leave can be taken en bloc or over individual days, weeks or by reduced hours over an agreed period. But "it may only be broken into smaller periods at the discretion of the employer," she said.

Parental leave is extended by the number of public holidays which fall within the period permitted for leave.

A worker cannot take more than 14 weeks' parental leave in any period of 12 months. But parents of twins or multiple births "may take 14 weeks in respect of each child, even if this amounts to more than 14 weeks in one 12-month period," Ms Bacik said.

An employer has the right to end parental leave if a worker is availing of the leave for a purpose other than taking care of his or her children. Workers are required to give employers' six weeks notice of parental leave. Employers must prepare a confirmation document to be given to the employee at least four weeks before the leave begins. This document must confirm the commencement date, duration and details about how the leave is to be taken. Both parties sign the document and the employee keeps a copy. An employer is entitled to postpone parental leave if the proposed period would have a substantially adverse effect on the business. But "the employer must give notice of postponement to the employee at least four weeks before the intended commencement of the leave," Ms Bacik said. The employer must consult the employee before giving this postponement notice and summarise the grounds for postponing the leave.

"Significantly, however, an employer may not seek to postpone leave where a confirmation document has already been signed by the parties," she said.

Workers are entitled to resume their original job after parental leave and retain their contract of employment, with the same terms and conditions. If this is not possible, the employer must provide suitable alternative employment.

Disputes concerning parental leave can be referred to a Rights Commissioner not later than six months after a dispute occurs. Either party can appeal a Rights Commissioner's decision to the Employment Appeals Tribunal. Workers are entitled to paid force ma- jeure leave for family emergencies to a maximum of three days in every 12 months or five days in every 36-month period. A worker is eligible if his or her presence is indispensable, due to an accident or illness. "Family member" includes a child, spouse or partner, brother or sister, parent or grandparent or a person to whom a worker is in loco parentis.