Maternity Leave – Common Questions & Answers

The whole area of Maternity Leave in the workplace can cause issues for employees and employers alike. This has been a topical subject this week. I had a client seek support from me this week on a maternity related issue as well as the publication of the case where a restaurant manager was awarded €30,000 due to a pregnancy related dismissal. http://jrnl.ie/3279944

So here the most common maternity related questions I get asked answered for you.

Question: Is Maternity Leave something that has to be given to an employee?

Answer: Yes. This is covered in the Maternity Protection Acts, 1994 – 2004. The Acts apply to all employees who are pregnant or have recently given birth (within fourteen weeks) or are breastfeeding (not more than twenty-six weeks from the date of the birth) and who have informed their employer of their condition. The Acts only apply to expectant fathers and fathers in the event of the death of the mother of the child.

The Maternity Protection Acts 1994 and 2004 provide the statutory minimum entitlements in relation to maternity at work including Maternity Leave.

Question: Does an employee have to be in employment for a specific period of time before they are entitled to Maternity Leave?

Answer: No. The entitlement to a basic period of Maternity Leave from employment extends to all female employees (including casual workers), regardless of how long they have been working for the company or the number of hours worked per week. The employee can also avail of additional unpaid Maternity Leave.

Question: What rights do pregnant employees have in the workplace?

Answer: The Maternity Leave acts give a pregnant female employee the right to:

·       Twenty-six weeks’ Maternity Leave (paid);

·       Sixteen weeks of additional Maternity Leave (unpaid);

·       Time off for ante-natal and post-natal care (paid);

·       Time off for ante-natal classes, (paid time off, to attend one set of ante-natal classes, other than the last three classes. The expectant father is entitled to paid time off work to attend the last two ante-natal classes in a set before the birth);

·       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 (within twenty-six weeks after the birth of the child);

·       Protection of certain employment rights;

·       The right to return to work after 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.

Question: What notice must an employee give their employer?

Answer: Employees must give at leave four weeks’ notice of their:

·       Intention to take Maternity Leave (providing a medical certificate confirming the pregnancy and specifying the expected week that she is due to give birth);

·       Intention to take additional Maternity Leave;

·       Return to work date.

Question: Is Maternity Leave paid leave?

Answer: It is important to be clear that employers are not obliged to pay for the period of Maternity Leave. An employee may qualify for maternity benefit from the Department of Social Protection if they have sufficient PRSI contributions. Any entitlement to pay and superannuation during a period of Maternity Leave depends on the terms of an individual contract of employment.

It can be found in some workplaces where an employee’s contract provides for additional rights to payment during the Maternity Leave period so that, for example, the employee could receive full pay less the amount of Maternity Benefit payable. Where an employer provides additional maternity payments, I would always advise employees to be aware of the applicable policy and the terms of the policy when receiving such payments e.g. return to work requirements and payback clauses.

Question: When should an employee apply for their maternity benefit?

Answer:  An employee who is about to commence their Maternity Leave should ensure that at least six weeks before their baby’s due date they have applied to the Maternity Benefit Section of the Department of Social Protection for Maternity Benefit. You can find the MB10 form here. https://www.welfare.ie/en/pdf/mb1.pdf

Question: What happens an employee returning from Maternity Leave?

Answer: Under the Maternity Leave act, the employee is entitled to return to work to the same job with the same contract of employment. The Act states that if this is not reasonably practicable a suitable alternative work solution should be provided. This new position should not be on terms substantially less favourable than those of the previous role.

The employee returning from Maternity Leave is entitled to be treated as if they had been at work during the period of Maternity Leave. Employment conditions cannot be worsened due to the Maternity Leave and if pay or other conditions have improved during the period of Maternity Leave the employee is entitled to those benefits when they return to work.

Question: What if the employee does not return from Maternity Leave?

Answer: Where an employee decides not to return to work after their period of Maternity Leave, they are required to give their employer notice in the usual manner in line with the provision outlined in their contract of employment or with the absence of a contract of employment the statutory minimum notice as outlined in the Minimum Notice and Terms of Employment Act 1973. It is worthwhile noting that an employer and employee can agree a different notice arrangement.

Question: How can an employee raise a dispute about a Maternity Leave?

Answer: An employee ought to use all the internal mechanisms within the company before raising a formal dispute. So this would involve raising an issue in line with the particular company’s procedures, for example a grievance procedure. Where an employee is not satisfied with the response from the company or if an employee has been dismissed in connection to the maternity acts, the individual can make a complaint within six months of the dispute or complaint occurring. The individual must use the online form available on the www.workplacerelations.ie website. The timeline may be extended for up a further six months only where there is a reasonable reason which prevented the complaint from being brought within the normal time limit.