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F. FAQs

What rights to pregnant employees have? Are fixed term employees entitled to Maternity Leave?  These are some of the questions that our team of experts have answered as part of Frequently Asked Questions (FAQs) relating to Maternity Leave. 

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What rights do pregnant employees have?

The Maternity Protection Acts give a pregnant female Employee the right to:

  • 26 weeks of maternity leave (Employees may be entitled to a social welfare payment or their Employer may continue to pay them);
  • 16 weeks of additional maternity leave (unpaid);
  • Time off for ante-natal and post-natal care;
  • Time off for ante-natal classes;
  • Health and safety leave;
  • Father’s leave in the event of the death of the mother;
  • Time off from work or reduction of working hours to allow for breastfeeding;
  • Protection of certain Employment rights;
  • Right to return to work after taking the leave;
  • Protection against dismissal;
  • Termination of additional maternity leave if the mother becomes ill;
  • Postponement of maternity leave if the baby has to be hospitalised.
Are fixed term Employees entitled to Maternity Leave?
All fixed term Employees have maternity rights under the Acts. Where a contract is due to expire during the maternity or health and safety leave period, protection under the Act also expires on that date.
Are Agency Workers entitled to maternity Leave?
Agency workers are deemed to be Employed under a contract of Employment for the purposes of the Act. The person who is liable to pay the wages is deemed to be the Employer, in this case, normally the Employment agency.
Are pregnant Employees entitled to time off work outside of actual Maternity Leave?
Ante-natal or Post-natal Care Pregnant Employees and Employees who have recently given birth are entitled to paid time off from work to receive ante-natal or post-natal care.
What happens to probation, training and/or apprenticeships during Maternity Leave?

All periods of probation, training and apprenticeship should be suspended during absence on leave and should resume on their return to work.

 

What are the notification requirements for an Employee seeking to take time off work to attend Ante-natal or Post-natal Care appointments?

The Employee must notify her Employer in writing of the date and time of the appointment as soon as practicable, not later than two weeks before the appointment. An Employer can ask her to produce an appointment card or another appropriate document showing the date and time of the appointment, confirming the pregnancy and specifying the expected week or actual date that the baby is due. However, this rule does not apply to a first appointment.

 

In the event that an Employee has to go for an unscheduled antenatal visit or post-natal visit and cannot comply with the above, the Employee should, give her Employer, within a week, proof that she has kept the appointment and the reason why she could not notify the Employer in advance of it.

Are Employees entitled to time off to attend Ante-Natal Classes?
Female Employees are entitled to paid time off to attend 1 complete set of ante-natal classes (other than the last 3 classes in a set).  An expectant father is entitled to paid time off to attend the last 2 ante-natal classes in a set.  This is a once off entitlement in respect of one pregnancy only.  However, where an Employee is unable to attend a class through no fault of their own, they may be permitted to attend that class on a subsequent birth.  At least 2 weeks’ notice of the intention to avail of this leave must be provided before the class and appropriate documentation submitted.
What is Health & Safety Leave?
Pregnant Employees, Employees who have recently given birth and Employees who are breastfeeding may be entitled to health and safety leave in certain situations.
Is the Employer required to carry out a risk assessment on a pregnant Employee?

The Safety, Health and Welfare at Work Act requires an Employer to assess any risk to the safety or health of any pregnant Employees, an Employee who is breastfeeding or an Employee who has recently given birth resulting from any activity at that Employer’s place of work is likely to involve a risk of exposure to certain agents, processes or working conditions, including but not limited to those specified in the Regulations.

Employers must take preventative and protective measures necessary to ensure the safety and health of such Employees. If it is not possible for the Employer to do this, the Employee must be provided with alternative work or Health and Safety leave.

When might an Employee be entitled to take Health & Safety Leave from work during pregnancy?

The Employee is entitled to be granted leave if a risk has been identified in their day to day work and:

  • It is not possible for the Employer to move the Employee to other work; or
  • Such a move cannot reasonably be required; or the other proposed work is not suitable for the Employee. 
Is the Employee on Health & Safety leave entitled to payment?

An Employee who is granted health and safety leave must be paid her usual wage by her Employer for the first 21 days of her leave.

 

The leave period can be for a number of shorter periods and need not be one consecutive period. An Employee whose health and safety leave extends beyond 21 days may be entitled to Health and Safety Benefit from the Department of Social Protection provided she has the requisite PRSI contributions. 

When does Health & Safety Leave come to an end?

Health and safety leave can end in a number of ways:

 

  • When maternity leave begins;
  • If a breastfeeding mother stops breastfeeding;
  • If she has not stopped breastfeeding, then 26 weeks after the birth of the child;
  • If the Employer takes whatever steps are necessary to ensure that the Employee will no longer be exposed to any risk;
  • If the Employer becomes able to move the Employee to suitable appropriate alternative Employment;
  • If the Employee is Employed under a fixed-term contract, on the expiry of the fixed term.
What is the length of Maternity Leave that an Employee is entitled to?

A pregnant Employee is entitled to:

 

  • 26 consecutive weeks of maternity leave;
  • 16 consecutive weeks additional maternity leave commencing immediately after the end of her 26 weeks maternity leave.
Are there any restrictions on when an Employee can take the leave?

A pregnant Employee can begin and end her maternity leave on any day she selects but must take:

 

  • A minimum of two weeks leave before the end of the week that the baby is due;
  • 4 weeks after the birth of the child.
What notification does an Employee have to give her Employer when applying for Maternity Leave?

An Employee who wishes to take maternity leave must notify her Employer in writing of this:

  • As soon as reasonably practicable;
  • Not later than 4 weeks before the beginning of maternity leave;
  • By providing a medical certificate confirming the pregnancy and specifying the expected week that she is due to give birth.

 

An Employee who wishes to avail of her entitlement to additional maternity leave must notify the Employer in writing of her intention to take additional maternity leave:

  • Not later than 4 weeks before the day on which her additional maternity leave is due to begin.
How do ‘Still Births’ affect Maternity Leave?
In the event of a stillbirth occurring after the 24th week, the Employee is still entitled to 26 weeks maternity leave.
What is the entitlement for Fathers?

There is no entitlement under this legislation to paternity leave except in the event of the death of the mother within 24 weeks of the birth. If the mother’s death occurs within 24 weeks following the birth, then a father who is Employed under a contract of Employment is entitled to:

 

  • Leave up until the end of the 24th week and, if he so wishes, to further leave of 16 consecutive weeks (additional leave).

 

All or part of the additional 16 weeks can be postponed in the event of hospitalisation of the child.

 

If the mother’s death occurs after 24 weeks following the birth, then the father is entitled to leave up until the end of the 40th week. The leave will commence within 7 days of the mother’s death. A father may be entitled to a benefit from the Department of Social Protection.

 

What notification requirements must a father give his Employer if he is looking to avail of this leave?

If a father wishes to avail of his entitlement to leave in the event of the death of the mother, he must notify his Employer in writing (or have the Employer notified not later than the day on which leave begins):

 

  • Of the death of the mother;
  • His intention to take leave; and
  • The length of leave to which he believes he is entitled.

 

If asked, he must give his Employer as soon as reasonably practicable:

  • A copy of the mother’s death certificate; and
  • The child’s birth certificate.

 

If a father wishes to avail of his entitlement to further leave (where the mother has died within 24 weeks of confinement) he must notify his Employer in writing (or have his Employer notified) of his intention to take further leave, either:

 

  • At the same time as the original application for leave is made; or
If later, not later than 4 weeks before the date which would have been the father’s expected date of return if he had not applied for further leave. The father can change the date on which he returns to work.
Can leave be postponed due to Hospitalisation of the Child?

An Employee on:

  • Maternity leave (after 14 weeks maternity leave and at least 4 of those weeks being after the baby’s birth);
  • Additional maternity leave;
  • Father’s leave; or
  • Additional father’s leave.

 

May request his/her Employer to postpone part of the leave and/or additional leave (or part of it) if the baby is hospitalised. If the Employer agrees to postpone the leave, the Employee will return to work on a date agreed with the Employer and be entitled to take the postponed leave in one continuous period, beginning not later than 7 days after the child has left hospital. 

What notification requirements apply to postponing leave due to hospitalisation of the Child?

An Employee who wishes to postpone part of his/her leave because of the hospitalisation of the child must notify his/her Employer in writing (or have the Employer notified) of the request.

 

On request the Employer must be given:

  • A letter or other appropriate document from the hospital confirming the hospitalisation of the child; and
  • A second letter or other appropriate document from the hospital or the child’s doctor confirming the date that the child leaves hospital.

 

An Employer must notify the Employee in writing of the Employer’s decision as soon as is reasonably practicable. An Employee must notify the Employer when s/he wishes to take the leave once again, as soon as is reasonably practicable but no later than the date that s/he wishes the leave to begin.

What entitlements are there for breastfeeding mothers returning from Maternity Leave?

An Employee who is breastfeeding is entitled, without loss of pay, for 26 weeks following the birth, as decided by her Employer:

  • Time off from her work to breastfeed in the workplace or
  • A reduction of working hours for breastfeeding outside work.

Breastfeeding is defined to include expressing breast milk and feeding it to a child immediately or storing it for the purposes of feeding it to the child at a later time. An Employer is not required to provide facilities for breastfeeding in the workplace where it would cost more than a nominal cost. An Employee who is breastfeeding in work is entitled, without loss of pay, to take 1 hour from her work, each working day, as a breastfeeding break, which may be taken in the form of:

  • One 60 minute break;
  • Two 30 minute breaks;
  • Three 20 minute breaks; or
  • As agreed by her and her Employer.
What notification requirements must an Employee who is breastfeeding give her Employer?

Where an Employee who is breastfeeding proposes to take time off from her work or have reduced working hours she must:

 

  • Notify her Employer in writing of the proposal as soon as reasonably practicable but not later than the latest date for notifying her Employer of her intention to return to work; and
  • Give, if asked, the birth certificate of the child (or any other document establishing the date of birth of the child).
Are Employees entitled to paid Maternity Leave?

An Employer is not obliged to pay an Employee while on maternity leave. However, the Employer is required to pay the Employee while she is:

  • Receiving ante-natal or post-natal care;
  • Attending ante-natal classes;
  • Taking time off / reduced hours for breastfeeding;
  • During the first 21 days of health and safety leave.
What happens to Annual leave and Public Holidays while on Maternity Leave?
Annual leave and public holiday benefits will continue to accrue during the period of maternity leave and additional maternity leave.
Does an Employee have a right to return to work after Maternity Leave?

An Employee is entitled after maternity leave, additional maternity leave, father’s leave, additional father’s leave and health and safety leave to return to work:

 

  • With the same Employer, or the new owner (if there was a change of owner);
  • To the same job;
  • under the same contract; and
  • Under terms and conditions that are;
    • not less favourable than those that would have applied to the Employee before she went on maternity leave; and
    • Incorporate any improvement to the terms and conditions to which the Employee would have been entitled if s/he had not been absent.

In what circumstances can an Employer offer suitable alternative Employment to an Employee returning from Maternity Leave?

Where it is not reasonably practicable for the Employer to allow the Employee to return to their old job, the Employee is entitled to be offered suitable alternative Employment under a new contract by the Employer (or the Employer’s successor or an associated Employer).

 

Suitable alternative work is work which is:

  • Suitable and appropriate for the Employee to do in the circumstances; and
  • The terms and conditions of the new contract are not less favourable than the original contract; and
  • Incorporate any improvement to the terms and conditions which the Employee would have been entitled to if s/he had not been absent.
Are Employees on Maternity Leave protected against dismissal?

The Employee is protected against dismissal when:

  • On maternity leave or additional maternity leave;
  • On father’s leave or additional father’s leave;
  • On health and safety leave;
  • Attending ante-natal classes;
  • Obtaining ante-natal or post-natal care;
  • Breastfeeding.
If an Employee is on maternity leave and a company has to make redundancies, are there any restrictions in legislation that prohibit making an Employee redundant whilst she is on maternity leave?
The Maternity Protection Acts, 1994 and 2004 provide that any termination of an Employee’s Employment whilst the Employee is absent from work on maternity leave is void and therefore of no effect. The Acts render ineffective any attempt to actually terminate or any notice of termination given during a period of maternity leave. 

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