Parental/Force Majeure Leave

Transcription

1 Parental/Force Majeure Leave 13 PARENTAL/ FORCE MAJEURE LEAVE Introduction The Parental Leave Act came into operation on the 3rd of December 1998, and was amended by the Parental Leave (Amendment) Act, The Act has two main purposes: to entitle an employee who is a natural or adoptive parent of a child, aged between 0-8, to 14 weeks unpaid leave (parental leave) to enable him or her to take care of the child, and to entitle an employee to a number of paid days leave (force majeure) to deal with family emergencies arising from an unforeseen injury to or illness of a family member or of an individual who is in a position of domestic dependancy, which requires that employee s immediate presence at their side. Copyright 2006 Published by the Small Firms Association 84/86 Lower Baggot Street Dublin 2 Telephone: Fax: info@sfa.ie Website: This guideline is not a substitute for industrial relations and/or legal advice where appropriate. The guideline may need adaptation to suit the particular circumstances of individual organisations. Members are invited to consult the SFA in this regard. SCOPE The Act covers all employees who are: Employed under a contract of employment or contract of apprenticeship. Employed by employment agencies. In this case it is the person who is liable to pay the wages who is deemed to be the employer for the purposes of the legislation ENTITLEMENT TO PARENTAL LEAVE Each parent is entitled to 14 weeks parental leave for each child. The leave must be taken before the child reaches 8 years of age, or 16 years of age in the case of a child with a disability. Adoptive Children If a child is under 6 years at the time of the adoption, the leave must be taken before the child reaches 8 years of age. However, if the child is aged between 6 and 8 years at the time of the adoption, the leave must be taken within 2 years of the adoption order. Minimum Service Requirement An employee must have at least one year s continuous service with the employer before being entitled to take parental leave. However, where the employee has more than three months but less than one year s service, and where the child is approaching the age threshold, the employee will be entitled to one week s leave for every month of continuous employment completed with the employer. Transfer of Leave Each parent has a separate entitlement to parental leave from his or her job. The leave may not be transferred between the parents, i.e. the mother cannot take the father's leave, and vice versa. However, where both parents work in the same employment one parent may transfer his or her leave to the other parent. (This provision is currently subject to legal review.) TAKING PARENTAL LEAVE The leave may be taken either as a continuous block of 14 weeks or two separate periods of a minimum of six weeks each. If the leave is taken in this way, there must be at least 10 weeks between each separate period. The leave may also be broken up over lesser periods of time with the employer s consent. An employee is not entitled to any more than 14 weeks leave per child.

2 Annual Restriction Where an employee qualifies for parental leave in respect of more than one child, the employee may not take more than 14 weeks parental leave in any 12-month period, unless the employer agrees otherwise. However, this restriction does not apply in the case of children of a multiple birth (i.e. twins, triplets, etc). If on the date of the commencement of the Act, 18 May 2006, if an individual has a child aged between seven and eight years of age and has already taken parental leave in respect of another child within that year, they will not be precluded from taking parental leave for the older child. This provision is only valid until 18 May A similar rule applies to a child with a disability approaching the age of sixteen. Broken Leave Where the employer agrees to the taking of the parental leave in the form of a number of hours, then the entitlement is based on the hours the employee worked in the 14 weeks prior to the commencement of the leave. There are two ways of calculating the entitlement, if the leave is to be broken up: 1. Where an employer and an employee agree on a reference period Where the employer and employee agree that the 14 continuous weeks worked by the employee before the leave commences is to be used as a reference period, then the total number of hours worked during that 14 week period represents the total number of hours leave to which the employee is entitled. 2. Where an employer and an employee cannot agree on a reference period Where the parties cannot agree on a particular period of 14 continuous weeks to be used as a reference period, then a different formula will be applied, (e.g. where the employee does not work a fixed number of hours per week). In this case, the average number of hours worked in a 14 week period, before the start of any period of parental leave, must be calculated. Absences on other types of leave In determining the 14-week period mentioned above, absences as a result of parental leave during those 14 weeks are treated as if the employee was at work. Absences as a result of other types of leave, (e.g. annual leave, public holidays, sick leave, maternity leave, adoptive leave, carer s leave and Force Majeure leave), are excluded and the fourteen week period will be extended by the corresponding number of days of the other leave taken, immediately prior to the start of the reference period. Parental Leave and Maternity Leave Parental leave can be taken immediately following maternity leave provided the employee has complied with the service and notification procedures of the Act and provided the employer does not postpone the leave (see note on postponement below). EMPLOYEE RIGHTS Protection of Employment Rights An employee is regarded as remaining in the employment concerned, during an absence on parental leave, and retains all employment rights (except the right to remuneration and superannuation benefits). The absence counts as reckonable service for the purposes of annual leave, increments, seniority and redundancy. Parental leave cannot be treated as sick leave, adoptive leave, maternity leave, annual leave, carer s leave or force majeure leave, to which an employee is entitled. No Entitlement to Social Welfare There is no entitlement to Social Welfare Benefit while on parental leave. Employees may receive credited social welfare contributions following a period of parental leave. Employees are advised to contact Social Welfare directly. Suspension of Probation A period of probation, training or apprenticeship may be suspended, by the employer, while the employee is on parental leave. Annual Leave and Public Holidays Any public holidays that fall during a period of parental leave will be added to the end of the period of parental leave.

3 Annual leave which accrues during an absence on parental leave will be granted by the employer in accordance with Section 20 of the Organisation of Working Time Act, Protection against dismissal If an employee: 1. exercises, or proposes to exercise their right to parental/force majeure leave and is dismissed, 2. is not permitted by the employer to return to work, and is entitled to do so, following a period of parental leave, then they will be regarded as having been unfairly dismissed for the purposes of the Unfair Dismissals Acts, 1977 to 2001, unless there are substantial grounds justifying the dismissal. NOTIFICATION OF PARENTAL LEAVE (Sample forms are available to download from An employee must give written notice to the employer of their intention to take parental leave, not later than 6 weeks before the proposed commencement of the leave. If parental leave is being taken in separate periods of six weeks or more, when giving the employer notice, the employee may give one notice containing the dates of both periods of parental leave or two separate notices containing the date of the relevant period of parental. A copy of the notice must be retained by both parties. The notice must include the following details: the date on which the employee intends to commence the leave; the duration of the leave; the manner in which the employee proposes to take the leave; the employee s signature. However, an employer may, at his or her discretion, waive all or part of the notification period. Evidence The employer may require the employee to provide evidence of his/her entitlement to parental leave (e.g. the child s date of birth, the date of the adoption order or evidence of parentage). Confirmation of Parental Leave The employee and employer must prepare a confirmation document, once notification of the intention to take parental leave has been made. This document must be prepared no later than 4 weeks before the leave is due to begin and must include the following details: the date on which the leave will commence; the duration of the leave; the manner in which the leave will be taken; signatures of the employer and employee. Alterations to the Confirmation Document Once a confirmation document has been signed by both parties, it cannot be altered unless both parties agree. Revocation of Notice An employee may revoke, in writing, his/her notice of intention to take parental leave at any time before the confirmation document is signed. Suspension of parental leave in event of sickness of parent If a relevant parent becomes sick and is unable to care for the child, they may suspend the commencement of the leave until they are no longer sick or, if the parental leave has commenced, suspend the taking of the balance of the leave until such time as they are no longer sick. Relevant Evidence of Sickness An employer may request an employee to furnish relevant evidence of their sickness. This would consist of a medical certificate, signed by a medical practitioner, stating that the employee is, by reason of the sickness specified in the certificate, unable to care for the child. Postponement of Parental Leave by the Employer Management may decide to postpone the parental leave, for up to 6 months, if satisfied that granting the leave would have a substantial adverse effect on the operation of the business, by reason of seasonal variation, if there are difficulties finding a replacement, or if a number of employees are already availing of parental leave. Notification of Postponement Postponement must be in writing, no later than 4 weeks before the proposed date of commencement of the leave, specifying the grounds for the postponement. Consultation with the employee must take place before any notification of postponement.

4 Limitations on Postponement of Leave 1. Generally, the employer may postpone the leave only once in respect of any particular child. However, if the reason for the postponement is seasonal variations in the volume of work, the leave may be postponed for two periods of 6 months, in respect of the same child. 2. Parental leave cannot be postponed by the employer once a confirmation document has been signed by both parties. 3. If, solely as a result of postponement, the child concerned will reach the age threshold before the end of the leave, the employee retains the entitlement to take the parental leave. ABUSE OF PARENTAL LEAVE An employee must use his/her parental leave to take care of the child concerned. The employer may terminate the leave if s/he has reasonable grounds to believe that it is being used for a purpose other than taking care of the child concerned. If following an investigation an employee is found abusing this leave, they may be subject to disciplinary action. Employers are advised to include a clause on abuse of parental leave in the company s policy/procedure on parental leave. Termination of Leave However, before terminating the leave, the employer must notify the employee, in writing, of his or her intention to do so, and invite the employee to make representations on the matter within 7 days. The employer is obliged to consider the employee s submission before deciding whether to terminate the leave. Notification of Termination The employee must be notified, in writing, specifying the grounds and the date of the termination, which must be no earlier than 7 days after the date notification of termination is given. In a case where the leave is terminated and the employee returns to work, the period between the date of the employee s return to work and the date on which the leave would have ended if the employee had completed the leave, does not count as parental leave. Refusal to grant Parental Leave Management may refuse, in writing, to grant parental leave, if they have reasonable grounds to believe that the employee is not entitled. The employee is permitted to make representations on the matter within 7 days of the refusal, and the employer must consider the employee's submission, giving reasons for the refusal. RIGHTS MAINTAINED WHILE ON PARENTAL LEAVE Return to Work An employee is entitled to return to work at the end of a period of parental leave, with the employer with whom s/he was working immediately before the absence, or with his or her successor, in the job held immediately prior to the leave and under the same contract, terms and conditions of employment. Employees on Fixed Term Contracts Employees on fixed term contracts are entitled to parental leave (subject to satisfying the service and notification requirements of the Act). However, if the contract is due to expire during a period of parental leave, the leave and any entitlements to benefit expire on the same day. There is no entitlement to return to work. Change of Ownership If the business has changed ownership during the employee s absence on the leave, s/he is entitled to work under a contract of employment identical to the contract that existed with the original employer. Return to Job An employee is entitled to return to work at the end of a period of parental leave, with the employer with whom s/he was working immediately before the absence, or with his or her successor, in the job held immediately prior to the leave and under terms and conditions of employment not less favourable than those that would have been applicable to the employee and that incorporate any improvement to the terms or conditions of employment to which the employee would have been entitled, if s/he had not been so absent from work. Cessation of Work If an interruption or cessation of work at an employee s place of employment on the date of the intended return to work makes it unreasonable to expect the employee to return to work on that date, the employee may return to work as soon as is practicable after the interruption or cessation ends.

5 Alternative Employment If it is not reasonably practicable for an employer to allow an employee to return to the job held immediately prior to the leave, suitable alternative employment must be provided under a new contract of employment. The terms and conditions of the alternative employment must not be substantially less favourable to the employee than the terms of his/her original job, and incorporate any improvement to the terms or conditions of employment to which the employee would have been entitled, if s/he had not been so absent from work. FORCE MAJEURE LEAVE Force Majeure Leave is provided for in the Parental Leave Acts, 1998 and Force Majeure is a legal term meaning that some important and critical event has taken place thereby releasing the person directly affected from his/her legal obligations in a particular matter that would otherwise have applied. In this context, it means that because of a sudden injury or illness, affecting a member of an employee s immediate family, making that employee s presence to assist that family member indispensable, then that employee is entitled to immediate paid leave for that purpose. Entitlement Under the above circumstances, the employee is entitled to paid leave for up to three days in any twelve-month period, or five days in any period of 36 consecutive months. Part days are regarded as full days for the purposes of the maximum number of days one can take. Employers would be expected to pay a normal day's pay, excluding overtime, for a force majeure leave day. This leave specifically excludes bereavements. There is no statutory entitlement to paid time off resulting from a family bereavement, but many companies would have a policy granting some leave in this regard. Scope The immediate family members of the employee covered for the purposes of Force Majeure Leave are: A child/adoptive child of the employee A spouse or person with whom an employee is living as a husband or wife A person to whom the employee is in loco parentis A brother or sister of the employee A parent or grandparent of the employee A person who resides with the employee in a relationship of domestic dependency. Domestic Dependency A person who resides with an employee is taken to be in a position of domestic dependency with the employee if, in the event of injury or illness, one reasonably relies on the other to make arrangements for the provision of care. The sexual orientation of the persons concerned is immaterial. There is no service requirement for an employee to take Force Majeure Leave and, by definition, prior notice does not arise. But an employee who has availed of the entitlement must immediately afterwards give written notice to their employer that they have taken Force Majeure Leave. Protection of employment rights During an absence on force majeure leave an employee is regarded as being in the employment of the employer, and retains all of his or her employment rights. Force majeure leave cannot be treated as part of any other leave (e.g. sick leave, adoptive leave, maternity leave, annual leave or parental leave) to which the employee is entitled. Notice By definition, prior notice does not arise in the case of force majeure leave. However, an employee who has availed of the entitlement must as soon as is reasonably practicable thereafter, give written notice to his/her employer stating that s/he has taken such leave and the date on which it was taken. The employee must also include a statement of the facts entitling them to the leave. Procedure It is advisable for employers to formulate a sound policy on Emergency Leave and implement it accordingly. Employers should proceed as follows: - 1. Use the terms Emergency Leave or Emergency Family Leave for Force Majeure Leave. 2. Prepare a brief written policy on Emergency Leave outlining the entitlement and the circumstances in which it can arise and attached to that the appropriate Notice of Emergency Leave Form to be completed by an employee who has availed of the entitlement. This form should include: the employee's name and PPS number; the employer's name and address; the name and address of the person to whom the leave relates;

6 the relationship of this person to the employee and the nature of the illness or injury; the dates on which the leave is taken; a confirmation that the emergency leave was taken for urgent family reasons arising from the illness or injury which rendered the presence of the employee indispensable. The employee should also sign a declaration that the information is true and complete. (A sample form is available to download from 3. Monitor carefully the pattern of Emergency Leave taken and adherence to the procedure adopted, paying particular attention to developing good practice and completion by all employees availing of the entitlement. Force Majeure Leave in Practice There has not, to date, been a huge raft of appeals of force majeure leave decisions, but there are some worrying trends in interpretations. The essential points of determinations to date have been that: each case must be assessed on its own merits; no illness is too small - the decision to grant force majeure leave must be based on the facts as they appeared at the time of the incident giving rise to the claim rather than viewing the circumstances in hindsight and taking into account the ultimate seriousness or otherwise of the illness; force majeure leave is not intended to provide child-minding facilities; it cannot be pre-scheduled; the claimant must be at the place where the injured/ill person is situated; and the scope of the Act is restricted to family members as set-out (e.g. does not extend to mother-in-law) and to a person who resides with the employee in a relationship of domestic dependancy. DISPUTES PROCEDURE The provisions in the Act regarding the resolution of disputes do not apply to members of the Defence Forces. Reference of Disputes to Rights Commissioner Employees and employers are entitled to refer a dispute in relation to an entitlement under the Act to a Rights Commissioner. Disputes concerning the dismissal of an employee are dealt with under the provisions of the Unfair Dismissals Acts, 1977 to A reference to the Rights Commissioner concerning a dispute under the Act must be made in writing within 6 months of the occurrence of the dispute. Appeal from Decision of Rights Commissioner Either party may appeal a decision of the Rights Commissioner to the Employment Appeals Tribunal. An appeal is made by giving written notice to the Tribunal within 4 weeks of the date on which the Rights Commissioner s decision is given. Enforcement by the Circuit Court If a person fails or refuses to comply with a decision of the Rights Commissioner or a determination of the Tribunal, the other party, or the Minister for Justice, Equality and Law Reform, may apply to the Circuit Court for an order directing compliance. Appeals to the High Court Either party to proceedings in the Employment Appeals Tribunal may appeal a determination of the Tribunal to the High Court on a point of law only. REDRESS The Rights Commissioner and the Employment Appeals Tribunal may order redress, as they consider appropriate, comprising either or both of the following: the granting of the parental leave; the payment by the employer of compensation up to 20 weeks remuneration. RECORDS An employer must keep a record of parental leave and force majeure leave taken by employees, specifying the period of employment of each employee and the dates and times of the leave taken. These records must be retained for 8 years. An employer who fails to keep records may be liable, on summary conviction, to a fine of up to 1,905. Copies of all notices and documents required under the Parental Leave Act must be retained by the employee and the employer for 1 year. CONCLUSION Sample forms for notification, confirmation and postponement of Parental Leave, together with a notification form for Force Majeure Leave are available on