Key changes to Parental Leave imminent following EU Directive
The Department of Justice and Equality has indicated that it intends to implement an EU Directive on Parental Leave in a Bill which will consolidate all family leave legislation (parental, maternity, adoptive, and carer’s leave). The Directive had been due to be implemented in March 2012 but member states were given an additional year if there were particular difficulties. It must be implemented no later than March 8th, 2013.
Under the EU Directive, [2010/18/EU], there is provision for four weeks’ parental leave for both mothers and fathers. The Directive, which applies to all workers including fixed-term, part-time and temporary agency workers, puts the framework agreement on parental leave agreed by the social partners at European level into EU law. It replaces a previous Directive [96/34/EC].
From the date of implementation, March 8th 2013, parents will both be entitled to four months’ parental leave in respect of a child (born to them or adopted) up to the age of eight. Member states may set the rules about how the leave is to be taken and this is likely to be included in legislation or regulation. The state may also set a minimum qualification period or length of service period but this cannot be more than one year. One of the four months entitlement will not be transferrable between the parents so as to encourage fathers to take the leave.
The Directive also gives parents returning to work after parental leave the opportunity to ask for a change in their working conditions. Employers will have to consider and respond to such requests, taking into account both employers' and workers' needs.
These changes, when implemented through legislation, will be updated in the Bright Contracts package and included in the updated Handbook. Existing users will be notified of the change and provided with an opportunity to update the handbook for existing employees, thereby keeping them up to date.
Current Position
Currently, Parental Leave provides for unpaid leave from work for parents to look after their young children to a maximum age of 8 years. In the case of an adopted child who is aged between 6 years and 8 years at the time of the adoption, the leave must be taken within 2 years of the adoption order, or if the child concerned has a disability, the leave must be taken before the child reaches 16 years of age or ceases to have that disability or any other disability (whichever occurs first).
All employees who have completed one year’s continuous service on the date the parental leave is due to commence are entitled to 14 weeks' unpaid parental leave. Parental leave may be taken as a continuous block of 14 weeks, or two blocks of six or more weeks with a minimum of 10 weeks between each block.
An employee must give written notice to The Company of their intention to take parental leave, not later than 6 weeks before the commencement of the leave. Employees may be required to provide evidence of his or her entitlement to parental leave. Once notification of the intention to take parental leave has been made, a confirmation document must be prepared which must include:
• The date on which the leave will commence
• The duration of the leave
• The manner in which the leave will be taken
• The signatures of employer and employee
Management may decide to postpone the parental leave, for up to 6 months, if satisfied that granting the leave would have a substantial adverse effect on the operation of the business.
During parental leave, your rights such as annual leave and public holiday entitlement, are preserved and continue to accrue as if you were not absent from work.
Parental leave may be terminated if there are reasonable grounds to believe that it is being used for a purpose other than taking care of the child concerned.
Summary of Changes in Directive
One purpose of the revised Directive is to seek to ensure that both parents take leave. The following changes are included:
• The right of working parents to parental leave is extended from 3 to 4 months for each child. This previous entitlement stood at 14 weeks per child. This entitlement is given to both parents of a child or an adopted child up to the age of 8 years. The leave is an individual right and should not be transferred from one parent to another. However, in order to encourage a more equal take up of leave by both parents, one of the months is non-transferrable. If only one parent takes the leave then it is limited to 3 months.
• The terms apply to all categories of workers including part-time, temporary and fixed term workers. The revised Directive allows Member States to maintain a qualification period of one year before an employee can apply for the leave. In the case of successive fixed term contracts with the same employer, the sum of these contracts must be taken into account for the purpose of calculating the qualifying period.
• Conditions of access, rules etc. for applying for the leave will be left up to each Member States. Member States can decide whether parental leave is granted on a full-time or part-time basis, in a piecemeal way or in the form of a time-credit system.
• All forms of less favourable treatment are prohibited including dismissal on grounds of applying for or taking up parental leave.
• Governments, employers and unions will be obliged to assess and consider the specific needs of adopted children and children with a disability.
• Employees returning from parental leave shall (a) have the right to return to the same job or, if that is not possible, to an equivalent or similar job consistent with their employment contract or relationship and (b) will have the right to ask for changes to their working hours and/or schedules for a limited period. Employers will be obliged to balance the needs of an employee as well as the business in considering such requests. Both parties will be encouraged to maintain contact during the period of parental leave and to arrange reintegration measures on return to work.
Under existing legislation in Ireland an employee is not entitled to be paid during parental leave. The revised Directive still leaves the matter of paid parental leave up to the individual Member States so is unlikely to change in Ireland.
Prosecutions by NERA result in fines of over €100,000 in first nine months of 2012
Figures contained in the NERA Quarterly Update, Issue 3, 2012 show that in the period January to September 2012, a total of 57 cases were referred by NERA to the Courts for prosecution. 46 convictions were recorded in cases heard by the Courts over the period resulting in fines of €102,000 being imposed and arrears of wages of over €37,700 being awarded to employees.
Over 10,000 complaints received by WRCS in first nine months of 2012
The Quarterly Update also highlights that Workplace Relations Customer Services (www.workplacerelations.ie), based in NERA, is now the single portal for all employment rights complaints.
In the first nine months of 2012, a total of 10,199 employment rights complaints were received by the WRCS. These are broken down as follows:
Employment Appeals Tribunal - 2,536
Early Resolution Service - 1
Equality Tribunal - 515
Labour Court - 376
NERA - 328
Rights Commissioners - 6,443
Workplace Inspections by NERA results in the recovery of over €650,000 in unpaid wages in first nine months of 2012
NERA carries out workplace inspections to ensure compliance with employment rights legislation. In the period January to September 2012 a total of 3,140 inspection cases were completed involving over 51,000 employees. The amount of unpaid wages recovered was €659,435.
For more detailed information go to www.employmentrights.ie
