Increases in Parental Leave Entitlements – Your Questions Answered
Aisling Muldowney, Senior Associate with the Employment Law Group at A&L Goodbody, answers a range of potential questions that are likely to arise concerning the Parental Leave entitlement because of the Parental Leave (Amendment) Act 2019.
What are the current parental leave entitlements under Irish law?
Parental leave was increased in Ireland by the introduction of the Parental Leave (Amendment) Act 2019 (the Amendment Act):
as of 1 September 2019, parents are entitled to take unpaid leave up to a maximum of 22 weeks per eligible child (see below)
from 1 September 2020, the entitlement will increase to 26 weeks per eligible child
To qualify as an eligible child, a parent must take the leave before their child's 12th birthday, or 16th birthday if the child has a disability or long-term illness. Where the child is adopted between the ages of 10 and 12 years of age, the leave may be taken for up to two years after the date of the adoption order.
Who can take parental leave?
Employees with 12 months' service who are "relevant parents" (see below) are entitled to take parental leave in respect of each child of which they are a relevant parent.
Where on the latest date for commencing parental leave, an employee has less than 12 months' continuous service (but more than three), they are entitled to one week of parental leave for each month worked with their employer at the time of the commencement of the leave.
A relevant parent means a person who is the parent, adoptive parent or adopting parent in respect of the child or acting in loco parentis to the child.
A person who is a relevant parent in more than one capacity to one child (e.g. acting in loco parentis and also an adopting parent), is not entitled to parental leave in respect of each capacity – they are entitled to one parental leave benefit in respect of the one child.
What does ‘in loco parentis’ mean?
The term ‘in loco parentis’ is not defined by statute. It is a legal principle that literally means ‘in the place of the parent’. In loco parentis is not a status that is allocated to a person by the courts like guardianship, it is merely a reflection of the responsibilities and obligations they have taken upon themselves to care for a child.
In its 2010 Report ‘Legal Aspects of Family Relationships’ the Law Reform Commission noted that there is an accepted understanding and usage of the term ‘in loco parentis’ and that any attempt to define it narrowly in statutory form might restrict the scope of those who come into the meaning of the term. It also noted that in loco parentis is generally understood as referring to an individual, not the parent, who assumes parental rights, duties and obligations without going through the formal process of, for example, adoption of a child. In its report the Commission recommended that the term in loco parentis be defined in general terms as “a person who is not the parent of a child but who, acting in good faith, takes on a parental role in relation to the child”. In Hollywood v Cork Harbour Commissioners [1992] 1 IR 475 at 465 O’Hanlon J referred to in loco parentis as “any situation where one person assumes the moral responsibility, not binding in law, to provide for the material needs of another.” This is the definition that is referenced in Murdoch and Hunt’s Encyclopaedia of Irish Law (2021).
How can the leave be taken?
Employees are entitled to take parental leave as per any of the below options:
(i) a continuous block of 22 weeks (or 26 weeks from 1 September 2020); or
(ii) two separate periods each not less than 6 weeks (with a 10 week gap between the two blocks of leave); or
(iii) with the agreement of the employer one or more days, one or more hours, or a combination of both of these.
Accordingly, employees are only entitled to take leave in large blocks as per (i) and (ii) above. Any variation to this is permissible only with the employer's consent.
However, the Amendment Act has introduced a new provision allowing employees who have previously taken parental leave to take their remaining leave in one week blocks if they have previously taken parental leave in one of the following ways:
(i) a continuous period of 18 weeks (or 22 week from 1 September 2019 and 26 weeks from 1 September 2020); or
(ii) 2 x separate periods each consisting of not less than 6 weeks (and each block of leave had a gap of at least 10 weeks; or
(iii) with the employer's consent, a number of periods which comprise one or more day, or one or more hours, or any combination of both of these.
I don’t want to take my leave in such large blocks, is there any way I can compel my employer to allow me take the leave in shorter blocks?
No, not unless you have previously taken parental leave and comply with one of the conditions set out above.
I have already used some of my parental leave, am I entitled to take the new additional leave that has just been brought in?
Yes, and see the response to 3 above for information on the manner in which the leave can be taken.
Can parental leave be transferred between parents?
No.
However, where the parents are employed by the same employer, they may transfer up to a maximum of 14 weeks parental leave if the employer agrees to same.
What are an employee’s rights when on parental leave?
An employee who is on parental leave will still be regarded as working for the employer and, apart from the employee’s right to remuneration all other employment rights are preserved.
Does an employee have the right to return to their old job on the expiry of their parental leave?
Yes.
If improvements were made to the employee's position while they were away on parental leave, those improvements should be incorporated into their terms and conditions. Where it is not reasonably practicable for the employer to permit the employee to return to their old job, the employee is entitled to be offered suitable alternative employment. Suitable alternative employment has to be suitable in relation to the employee and appropriate for the employee in the circumstances.
Is an employer required to keep a record of parental leave taken?
An employer is required to keep a record of all parental leave taken and these should be kept for 12 years.
Can an employer postpone the leave?
Yes. An employer can postpone the leave for up to six months but only when granting the leave would have a "substantial adverse effect" on the business. This is a high threshold for businesses to prove. Normally, only one postponement is allowed, but it may be postponed twice if the reason is due to seasonal variations in the volume of work.
An employer may refuse, in writing, to grant parental leave if he/she has reasonable grounds to believe that the employee is not entitled to such leave. An employer may also terminate the leave if he/she has reasonable grounds for believing the leave is being used for a purpose other than taking care of the child concerned.
Can employees request a change in their working pattern when they return to work?
Employees returning to work can request a change in their working patterns/hours for a limited period on their return. Employers must consider this request but do not have to grant it.
Are employees entitled to paid parental leave?
This will depend on the individual employer's policies and/or the employee's contract. However, there is no statutory requirement for employees to be paid by their employer during a period of statutory leave with the exception of Force Majeure.
Employees can apply for social welfare payments for maternity, paternity, adoptive and parents' leave.
Can the paid portion of parental leave be transferred to another parent?
Both parents have an equal, separate entitlement to parental leave. This means both are entitled to 26 weeks leave.
If both parties work for the same employer and the employer agrees, you can transfer 14 weeks parental leave entitlement to the other parent.
What should employers be doing?
Upon receipt of a parental leave request, employers should reply in a timely and proactive manner. Furthermore, employers are advised to engage and consult with employees on such applications, in particular where an employer intends to postpone the granting of such leave.
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