1. Introduction
Section 6 of the Parental Leave Act 1998, as amended, provides for an entitlement to parental leave for parents of qualifying children. The current entitlement is 26 weeks of unpaid leave per child, taken in respect of children under 12 (or 16 in the case of children with disabilities).
This article addresses the Section 6 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(1) of the 1998 Act, as amended by subsequent legislation, provides that an employee who is a relevant parent of a child is entitled to leave from his or her employment, to be known as parental leave, for a period of 26 weeks to enable him or her to take care of the child.
Section 6(2) provides that the leave must be taken in respect of a child who has not attained the age of 12 (or 16 in the case of a child with a disability). The leave is per child, not per parent, with each parent entitled to the leave in respect of each qualifying child.
Section 7 provides for the manner in which the leave may be taken. The leave may be taken as a continuous period, as two separate blocks of at least six weeks each, or, with the employer’s consent, in shorter periods. The flexibility of the arrangement has increased over successive amendments.
Section 11 provides for the procedural requirements. The employee must give the employer not less than six weeks’ notice of the intended commencement of the leave. The notice must be in writing and must specify the form of leave proposed.
Section 13 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 (the leave being unpaid).
Section 14 provides for protection from penalisation. The employer must not penalise the employee for taking or proposing to take parental leave. Penalisation includes dismissal, suspension, demotion, transfer, the imposition of disciplinary sanctions, or any other unfavourable treatment.
3. Decision
WRC decisions on the parental leave entitlement have addressed the qualifying conditions, the procedural requirements, the operation of the protections, and the remedies for breach. The decisions emphasise the substantive nature of the entitlement.
On the qualifying conditions, the Adjudication Officer has held that the entitlement is unequivocal. Where the conditions are satisfied, the employer cannot refuse the leave; the employer may only postpone the commencement on specified grounds and for limited periods.
On the procedural requirements, the Adjudication Officer has held that the six-week notice period is a substantive protection for the employer. The notice should be in writing and should specify the form of leave proposed. Compliance with the notice period is a precondition of the entitlement.
On the protections, the Adjudication Officer has applied the Section 14 penalisation provisions broadly. Adverse treatment in temporal proximity to a parental leave request will, in general, give rise to an inference of penalisation, which the employer must rebut.
Where the entitlement is denied or the protections breached, the WRC may award compensation of up to 20 weeks’ remuneration. The award reflects the seriousness of the breach and the impact on the employee.
4. Takeaway
For employers, the parental leave entitlement is a substantive right and should be facilitated. The employer’s policy should set out the procedural requirements clearly and should provide for prompt processing of requests.
Employers should be alert to the penalisation protections. Adverse treatment of an employee who has taken or proposed to take parental leave should be carefully considered and documented. Temporal proximity is a significant evidential factor.
For employees, the entitlement is significant. Practitioners should ensure that the procedural requirements are observed and should consider the parallel protections under the Employment Equality Acts where the matter touches on family status or gender.
Practitioners should also consider the interaction between parental leave and other leave entitlements, including maternity leave, paternity leave, parent’s leave (a separate paid entitlement), force majeure leave, and carer’s leave.
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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