1. Introduction
The Paternity Leave and Benefit Act 2016 provides for an entitlement to two weeks of paternity leave for relevant parents in respect of the birth or adoption of a child. The entitlement is supported by paternity benefit under the social welfare system, providing income replacement during the leave.
This article addresses the paternity leave entitlement, the qualifying conditions, the procedural requirements, the protections, and the practical implications for both employers and employees.
2. Legislation and Case Law
Section 6 of the 2016 Act provides that a relevant parent of a child is entitled to two consecutive weeks of leave from employment to be known as paternity leave. The leave must be taken in the 26-week period beginning on the date of the child’s birth or, in the case of adoption, the date of placement.
Section 5 defines ‘relevant parent’. The category includes the father of the child, the spouse, civil partner or cohabitant of the mother, and the partner of an adopting parent. The category is gender-neutral and addresses a range of family structures.
Section 9 sets the procedural requirements. The employee must give the employer not less than four weeks’ notice in writing of the intended date of commencement of the leave. The notice must be accompanied by a statutory declaration of qualification.
Section 14 provides for the protections during the leave. The contract of employment is preserved, and the employee retains all rights and obligations associated with the employment, save for the right to be paid.
Section 23 provides for protection from penalisation. The employer must not penalise the employee for taking or proposing to take paternity leave. The penalisation provisions mirror those in the Parental Leave Acts.
Paternity benefit is payable under Chapter 8A of Part 2 of the Social Welfare Consolidation Act 2005 (as inserted by the 2016 Act). The benefit provides income replacement at a flat rate during the leave.
3. Decision
WRC decisions on paternity leave have addressed the qualifying conditions, the procedural requirements, and the operation of the protections. The decisions emphasise the substantive nature of the entitlement and the strict observance of the procedural requirements.
On the qualifying conditions, the Adjudication Officer has applied the Section 5 definition of relevant parent flexibly to accommodate the range of contemporary family structures. The provision’s gender-neutral language has been given effect.
On the procedural requirements, the Adjudication Officer has held that the four-week notice period is a substantive condition. The statutory declaration is a substantive requirement and should be furnished with the notice.
On the protections, the Adjudication Officer has applied the Section 23 penalisation provisions consistently with the equivalent provisions in the Maternity Protection Acts and the Parental Leave Acts. Adverse treatment in connection with paternity leave attracts liability.
Where the entitlement is denied or the protections breached, the WRC may award compensation up to a level reflecting the seriousness of the breach.
4. Takeaway
For employers, the paternity leave entitlement should be facilitated as a substantive right. The employer’s policy should set out the procedural requirements clearly and should provide for the prompt processing of requests.
Employers should be aware of the interaction with paternity benefit. The benefit is paid by the Department of Social Protection, but the leave is the employer’s responsibility. Employer policies on top-up payments should be clearly communicated.
For employees, the entitlement is a significant protection. Practitioners should ensure that the procedural requirements are observed and that any top-up entitlements under the contract or policy are claimed.
Practitioners should also consider the interaction with other leave entitlements, including maternity leave, parental leave, parent’s leave, and the right to request flexible working under the Work Life Balance Act 2023.
5. Further information
This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.
6. About Crushell & Co
Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.
We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.
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