The leave entitlement is based on either a statutory or a contractual entitlement. Statutory leave is a matter of law, while contractual leave is a matter between the employer and the employee. An employee cannot contract out of their statutory entitlement although there is nothing to prevent an employer and employee agreeing to a greater leave entitlement than that provided in the legislation.
The main leave entitlements are summarized below;
STATUTORY LEAVE ENTILEMENTS
The Court of Justice of the European Union (CJEU) has ruled that annual leave should not be conditional on the employee having actually worked during the leave year. Accordingly, annual leave continues to accrue even where the employee is on long term sick leave although such accrual can be limited to a carry-over period of 6 months to 15 months from the expiry of the leave period. Section 19 of The Organization of Working Time Act 1997 (OWTA) sets out an employee’s entitlement to annual leave which is calculated in accordance with the formulae contained in the Act. A full-time employee is entitled to four working weeks in a leave year in which they work at least 1365 hours (unless it is a leave year in which the employee changes employment).
Employers are not permitted to pay in lieu of statutory leave unless there has been a termination of employment, otherwise employee must get time off for rest and recreation and to satisfy the mandatory health and safety requirement.
Maternity provisions are contained in the Maternity Protection Acts 1994 and 2004. There is no qualifying time period before an employee can take maternity leave: their entitlement to maternity leave arises once they comply with the notification requirements. Employees are required to notify employers in writing of their intentions to take maternity leave, they are also required to produce medical certificate confirming the pregnancy and expected week of confinement. This notification is mandatory and must be given no later than 4 weeks before the commencement of the maternity leave.
Maternity leave is a minimum of 6 weeks period, must be taken no later than 2 weeks before the expected delivery date, and not earlier than 4 weeks after birth. This can however vary in situations where the baby arrives earlier or later than the anticipated delivery date. Maximum maternity leave period is 26 weeks, there is also an entitlement to 16 weeks additional leave. With the exception to right to remuneration, all other employment rights are protected during the entire period.
It is important to note that maternity leave can be granted to male employees in the event of the death of the mother. It will however be a continuation from where the mother left off, also in cases where there has been a still birth or miscarriage any time after the 24th week of the pregnancy the employee is still entitled to the full maternity leave.
Health and Safety leave
Health and safety leave applies under Section 18 of the Maternity Protection Act 1994. An employer is expected to carry out separate risk assessments in relation to pregnant employees, where there are particular risks to an employee’s pregnancy, these should be either removed or the employee moved away from them. If neither of these options is possible, the employee should be given health and safety leave from work, which may continue up to the beginning of the maternity leave. During health and safety leave, employers must pay employees their normal wages for the first 21 days (3 weeks), after which Health and Safety Benefit is paid by the department of social protection running into the start of their maternity leave.
Time spent on health and safety leave is treated as though the employee has been in employment, and this time can be used to accumulate annual leave entitlement. The employee is not entitled to leave for any public holidays that occur during health and safety leave.
It was announced in budget 2016 that statutory paternity leave of 2 weeks is to be introduced, together with a new Paternity Benefit, in respect of births from September 2016. This will be paid by the department of social protection.
The entitlements under the Adoptive Leave Acts 1995 and 2005 broadly mirror those of the maternity legislation. It is female and male (where the male is the sole adopter or the event of the death of the adopting mother). It is for a period of 24 weeks and commences on the date of the placement, an employee is also to take an additional 16 weeks but must notify the employer in writing of his intention to the additional leave at least four weeks before the end of the adoptive leave.
Parental leave provisions are governed by The Parental Leave Acts 1998 and 2006 as amended. Parental leave is generally only available to employees with one year’s continuous service with the employer. There is a limited exception to this rule.
To qualify for parental leave, the employee must be the natural or adopted parent of the child for whom the leave is taken or acting in loco parentis. The child must be under 8 or under 16 if disabled or suffering from a long term illness. Where a child is between 6 and 8 at the time of adoption, the leave must be taken within two years of the adoption order. The maximum period of entitlement to parental leave is 18 weeks.
The 18 weeks can be taken in one block of 18 weeks or in blocks of not less than six weeks with a gap of at least 10 weeks between each block. Any other combination requires the agreement of the employer. The purpose of parental leave is to take care of the child. It is not for the purpose of taking a sabbatical and if an employer has reasonable grounds to believe that the employee is not using the leave to take care of the child, the employer can terminate the leave.
An employee who is on parental leave will still be regarded as working by the employer and, apart from the employee’s right to remuneration or superannuation benefits, all other employment rights are preserved. An employer is required to keep a record of all parental leave taken and the records must be kept for 8 years.
Force Majeure Leave
Force majeure leave is also governed by The Parental Leave Acts 1998 and 2006. It arises where, for urgent family reasons and owing to an injury or illness, the immediate presence of the employee at the place where the injured or ill person is, whether at their home or elsewhere, is indispensable. Force majeure leave may be taken in respect of the following people: a child, a spouse or partner, a person to whom the employee is in loco parentis, a brother or sister, a parent or grandparent, or a person in a relationship of domestic dependency.
By its very nature, notice cannot be given of force majeure leave but the employee is obliged, as soon as reasonably practicable, to give written notice to the employer of the date on which the leave was taken and give a statement of facts as to why it was taken.
Force majeure leave may consist of one or more days but shall not exceed three days in any period of 12 consecutive months or five days in any period of 36 consecutive months. Where an employee is absent on force majeure leave for part of a day, it is deemed to be a full day of force majeure leave. Force majeure leave is paid
An employer is required to keep a record of all force majeure leave taken and the records must be kept for 8 years.
The Juries Act 1976 as amended requires employers to give employees paid time off for jury service. Employees may, however, be excused from jury service if they can provide the Court Registrar with a satisfactory reason or where they have served on a jury at some point over the preceding three years.
Leave for carer’s is contained in the carer’s Leave Act 2001 as amended. The purpose of carer’s leave is to enable an employee to provide full-time care and attention to what is termed a relevant person. A relevant person is a person who has such a disability that they requires full-time care and attention and is 18 years or over or, if under the age of 18, is a person in respect of whom an allowance is paid for domiciliary care of handicapped children.
An employee is entitled to 104 weeks for each relevant person. Carer’s leave can be taken in the form of one continuous period of 104 weeks or a number of periods the aggregate duration of which does not exceed 104 weeks. An employee who is on carer’s leave is not entitled to be remunerated. An employee’s entitlement to carer’s leave is subject to the employee having been employed by the employer for a period of 12 continuous months.
An employer is required to keep a record of all carer’s leave taken and the records must be kept for 8 years.
CONTRACTUAL LEAVE ENTITLEMENTS
There is no general legal obligation on employers to provide compassionate leave to an employee where a member of that employee’s family dies. However, attention should be to the employee handbook, or the employee’s employment contract, and/or previous practice in similar situations; all of which can give rise to contractual entitlement to compassionate leave.
An employee who is absent from work due to illness has no statutory entitlement to receive sick pay, nor their normal salary. Any payments made by the employer will either be on the basis of a contractual entitlement on the part of the employee or on a purely voluntary basis. In practice, many employers pay their employees their full salaries during short absences due to illness and subsequently recoup any disability benefit paid to the employee by the Department of Social Protection. Since 6 January 2014, the number of waiting days for entitlement to illness benefit has increased from three days to six days. An employee’s entitlement, or not, to sick pay should be carefully set out in the contract of employment.
Finally, it is important to remember that the timing of annual leave is determined by the employer in consultation with the employee as least on month before the holiday, therefore an employer can reasonably refuse to grant an annual leave requests, depending on certain factors, i.e. the needs of the business (is the employee requesting time off during your busiest time), the employee has not provided adequate notice and customs and practices of the business.
If you have any queries in respect of the above article then please contact our 24 Hour Advice Service on 1890 252 923