Parental Leave Entitlements – An Important Update in Employee Entitlements

Speed read

As primary schools across the country are wrapping up their final term this month, the question of childcare over the summer months is at the forefront of many parents' minds, and so too the issue of parental leave entitlement.

The concept of parental leave is not new, and has been provided for under Irish legislation for the last 20 years. However a private member's bill (the Parental Leave (Amendment) Bill 2017), passed by the Dáil earlier this month, contains important enhancements to employees' parental leave entitlements. While not yet signed into law, this Bill should pass through the final stages of the legislative process without any major amendments. So what do you need to know?

What are the current parental leave entitlements?

The Parental Leave Acts 1998 and 2006 entitle parents of (or people acting in loco parentis to) children up to eight years (or up to 16 years if the child has a disability or long term illness) to 18 working weeks' parental leave per child. To be entitled to this, the employee generally has to have completed one year's continuous employment with their current employer.

The current legislation entitles parents to take parental leave in one continuous "'block" of 18 working weeks, or two separate blocks. However, at the discretion of the employer, the parental leave entitlement can be taken in other forms broken down over days or even hours. An employer is also entitled to postpone any application for parental leave for up to six months if granting such leave at that point in time would have a "substantial adverse effect on the operation" of the employer's business.

Both parents have an equal separate entitlement to parental leave and this entitlement can only be transferred from one parent to another where both parents work for the same employer (and the employer agrees to such a transfer). Any such transfer is capped at 14 working weeks.

Although parental leave is unpaid, taking such leave will not affect other employment rights and entitlements. For instance, an employee on parental leave will continue to accrue service and statutory annual leave and public holiday entitlement as normal.

What does the Bill change?

The new Bill proposes to increase the leave entitlement by an additional eight weeks (i.e. 26 working weeks' parental leave per parent). Any parents who have already exceeded their current (18 weeks) entitlement will be entitled to an additional 8 weeks' unpaid parental leave if the Bill is enacted.

The new Bill also intends to increase the eligibility age of children from eight years to 12 years.

What should employers be doing?

The operational aspects of parental leave entitlement, including an employee's prior service requirement and the processing of applications for parental leave, are unchanged by the new Bill. However, employers are advised to engage and consult with employees on such applications, in particular where an employer intends to postpone the granting of such leave.

Parental leave policies will need to be updated to reflect the new enhancements when the Bill is enacted and accurate records of all applications should be maintained.

Other developments to note – is paid parental leave on the horizon?

Last week the European Council agreed its general approach to the draft EU Directive on Work Life Balance for Parents and Carers currently being prepared by the European Commission. In line with the renewed focus on the gender employment gap in the labour market, this directive aims to improve access to work-life balance arrangements, such as parental leave and flexible working arrangements, for parents and carers. The ultimate aim is to improve the take-up of family-related leave by fathers and increasing female participation in the labour market. This directive, against the backdrop of the gender pay gaps identified across Europe, encourages a more balanced distribution of work and child-care commitments between both parents.

The EU Commission, within the proposal of the draft directive, observed that the "design of parental leave" provided for under the EU's current Parental Leave Directive "does not lead to an equal uptake between the parents, with a vast majority of women taking leave". The "lack of payment during leave" has been identified as a key factor in this finding.

While Ireland's new Bill reflects the draft Directive proposals to increase the age of children for which parental leave can be taken, there is no similar provision to mirror the Directive's plan that at least part of the parental leave should be paid at a level set by the member state. Currently the proposal refers to an "adequate allowance" "at least equivalent to the level of sick pay". Significantly all but six EU counties (including Ireland) currently offer some form of compensation during parental leave.

Although the Minister of State for Justice, Mr David Stanton, was quoted in the Dáil in February this year supporting the introduction of paid parental leave on a phased basis, the new Bill as currently drafted only provides for unpaid parental leave. However, the Government has indicated that it may consider introducing some form of parental leave payments in the next Budget – so watch this space.

Conclusion

Two years ago Ireland put paid paternity leave (for two weeks) on a statutory footing for the first time through the Paternity Leave and Benefit Act 2016. The significant increase in parental leave entitlement for both parents, albeit unpaid, proposed by the new Bill is a further step in the recognition of the importance of balancing work and childcare commitments.

For more information in relation to this topic, please contact Ailbhe Dennehy, Senior Associate, or any member of the A&L Goodbody Employment Team.

Date published: 29 June 2018