Pregnancy, maternity, and leave related to work-life balance for workers (Directive 92/85, relevant provisions of Directives 2006/54, 2010/18 and 2019/1158)

• Author: Frances Meenan
• Pages: 36-56

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5 Pregnancy, maternity, and leave related to work-life balance for workers

(Directive 92/85, relevant provisions of Direct ives 2006/54, 2010/18 and

2019/1158)118

5.1 General (legal) context

5.1.1 Surveys and reports on the practical difficulties linked to work -life balance

In Ireland, there is an annual birth rate of some 60 000 babies per annum. Figures released

from the Department of Social Protection and Employment state that since the introduction

of paternity leave (two weeks) and benefit in September 2016, some 55 652 fathers have

taken paternity leave.119 In 2018, only 40 % of fathers took such leave, i.e. 24 080 fathers.

The Department of Children and Youth Affairs announced the National Childcare Scheme

in the Budget 2017 with the first payments made under the Scheme from November 2019.

The Scheme provides various allowances for parents (working or otherwise) bas ed on

income.120 The Scheme provided the first statutory support for childcare in Ireland.

Childcare in Ireland is expensive and the cost o f childcare is not tax deductible. The Child

and Family Agency provides access to research in respect of childcare and related

matters.121

A second issue is that only maternity leave is paid for by the State; some employers may

‘top-up’ the maternity leave pay to the moth er’s full remuneration. Additional maternity

leave and parental leave 122 are unpaid, so man y parents cannot afford such leave. There

has been criticism to the effect that mothers and parents cannot afford to take such

leave.123

5.1.2 Other issues

Maternity leave of 26 weeks plus additional maternity leave of 16 weeks is lengthy and in

addition, an employee is entitled to parental leave of 18 weeks. Such periods of leave total

60 weeks (if the mother takes parental leave at the same time). In a fast-moving

technological workplace, t here may be a re-organisation within that period resulting in a

change of ‘job’ or a potential redundancy situation. The employee may be offered suitable

alternative employment but nonetheless, the employee may have difficulty accepting such

new role and may resign from their employment and claim constru ctive dismissal.

5.1.3 Overview of national acts on work-life balance issues

The legislation concerning ‘family leave’, namely the Maternity P rotection Acts 1994 and

2004, the Adoptive Leave Act s 1995 and 2005, the Parental Leave Act s 1998 and 2006,

118 See Masselot, A., Family leave: enforcement of the protection against dismissal and unfavourable treatment

(2018) European network of legal experts in gender equality and non-discrimination, available at:

https://www.equalitylaw.eu/downloads/4808-family-leave-enforcement-of-the-protection-against-

dismissal-and-unfavourable-treatment-pdf-962-kb and McColgan, A., Measures to address the challenges of

work-life balance in the EU Member States, Iceland, Liechtenstein and Norway (2015) European network of

legal experts in gender equality and non-discrimination, available at:

https://www.equalitylaw.eu/downloads/3631-reconciliation.

119 Paternity leave is available to same-sex natural and adoptive parents.

120 https://www.dcya.gov.ie/docs/EN/Affordable-Childcare-Scheme/212/4402.htm.

121 https://www.tusla.ie/research/statistics-and-surveys/. The Child and Family Agency is known as Tusla.

122 In April 2019, the Minister for Employment Affairs and Social Protection has announced that there are to be

extensions to statutory parental leave with payment at the same rate as maternity pay to be extended over

a number of years. http://www.welfare.ie/en/pressoffice/Pages/PR230419.aspx. As regards family issues

and research, most of the research is over 10 years old and various pieces of legislation have been enacted

since, e.g. see http://www.welfare.ie/en/Pages/Balancing-Work-and-Family-Life.aspx.

123 The National Women’s Council has noted that Ireland is the bottom of the league in respect of pay for

family leave.

https://www.nwci.ie/learn/article/ireland_bottom_of_the_european_league_when_it_comes_to_paid_mater

nity_leave.

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the Paternity Leave and Benefit Act 2016, the Car er’s Leave Act 2000 and the Parent’s

Leave and Benefit Act 2019 are complicated more particularly as concerns the numerous

notice periods and forms required to take such leave. Nonetheless the legislation provides

for certain protections for employees who take such leave and wish t o return to work.124

5.1.4 Political and societal debate and pending legislative proposals

The Parental Leave (Amendment) Act 2019 comes into effect on 1 September 2019;

parents of children u p to the age of 12 years will be entitled to 22 w eeks parental leave.

This will increase from 22 weeks t o 26 weeks on 1 September 2020. The Act reduces the

age of the child from 12 years to 8 years. More importantly, however, this will be the first

time that parental leave will be paid, i.e. ba sed on the extra leave provided for under the

Act 2019. So this will mean that each parent will get four weeks paid leave in the first year

of the child’s life, increasing to eight weeks paid leave from 2020. Such leave is non-

transferable between p arents. The purpose of such leave is so that both the mother and

second par ent will take leave in the first year of the baby’s life. Effective 1 September

2019, leave will be paid but the d etails of the scheme are awaited. Th e leave will be on a

‘take it or leave it’ approach. This leave will be in addition t o maternity leave, paternity

leave, adoptive leave and parental leave (as presently provided). 125

5.2 Pregnancy and maternity protection

5.2.1 Definition in national law

Section 2 of the Maternity Protection Act 1994 provides that a ‘“pregnant employee” means

an employee who is pregnant and who has informed her employer of her condit ion.’

The definition is c onsistent with the definition in Article 2 of Directive 92/85. In addition,

Section 6(2A) of the Employment Equality Act 1998 (as amended) provides that

discrimination on the ground of gender shall be taken to occur where a woman employe e

is treated, contrary to any statutory r equirement, less favourably than another employee

is, has been or would be treated on a ground related to her pregnancy or maternity leave.

Section 26 of the Employment Equality Act 1998 allows an employer to provide for

beneficial treatment for women in connection with pregnancy and maternity (including

breastfeeding) or adoption.

It should be noted that there are two further definitions of importance in Section 2 of the

Maternity Protection Act 1994, namely –

‘“employee who has recently given birth” means at any time an employee whose

date of confinement was not more than 14 weeks earlier and who has informed her

employer of her condition.’

‘“employee who is breastfeeding” means at any time an employee whose date of

confinement was not more than twenty-six weeks earlier, and who has informed her

employee of her condition.’

5.2.2 Obligation to inform employer

The definition of a ‘pregnant employee’ is one who has informed her employer of her

condition. An employee i s obliged to notify her employer in order to be entitled to the

minimum amount of maternity leave; she must do so in writing as soon as reas onably

practicable but not later th an four weeks prior to the commencement of maternity leave.

The notification must include a medical or other appropriate ce rtificate confirming the

pregnancy and specifying the expected week of confinement. An employee can revoke the

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http://www.irishstatutebook.ie/eli/2019/act/11/enacted/en/html.