To Improve Employee Rights

Originally published in December 2004, the Parental Leave (Amendment Bill) is currently progressing through the various stages of the Dail legislative process. Once it passes into law, it will extend the entitlements of parents under the Parental Leave Act 1998.

The Parental Leave Act gives employees, both men and women with at least one year’s continuous service, the right to take 14 weeks unpaid leave to take care of children under the age of five. This leave is separate from maternity leave.

Currently, parental leave must be taken in a single continuous period of up to 14 weeks and cannot be divided into shorter periods without the consent of the employer. There is limited entitlement for parents who have less than one year’s continuous service but whose children are approaching the age threshold.

The 1998 act also introduced force majeure leave, allowing employees to take short periods of leave where, “for urgent family reasons, owing to an injury or illness of a specified person, the immediate presence of the employee is indispensable.”

Persons specified by the 1998 act include a child or adoptive child, spouse or “person with whom the employee is living as husband or wife”, brother, sister, parent, or grandparent of the employee. The leave cannot exceed three days in a period of 12 months or five days in a period of 36 months. Absence for part of a day is counted as a full day.

The report published by the Working Group on the Review of the Parental Leave Act 1998 in April 2002 referred to research which showed that only 20 of the eligible employees had taken parental leave in the three years since the Act initially came into force. It found the lack of any payment, while on leave, appeared to be a major disincentive. Research also indicated that only 2 per cent of the labour force had availed of force majeure leave since the Act came into force.

It claimed employers were taking a very restrictive approach to what constituted force majeure leave – a vast majority of cases referred to the Rights Commissioners under the 1998 Act concerned force majeure leave. These disputes often involved interpretations of the meaning of the words “urgent family reasons”, “immediate presence” and “indispensable”.

The Parental Leave (Amendment) Bill was published in December 2004. Its aim is to implement the recommendations in the working group’s report.

Justice minister Frank Fahey described it as the “third and final component of a significant package of statutory work-life balance measures”.

The other two measures include the maternity Protection (Amendment) Act 2004 and the Adoptive Leave Act 2005. The Bill, as currently drafted, proposes to raise the maximum age of the child for whose care parental leave may be taken, from five to eight years, or to 16 years in the case of a child with a disability.

It also allows parental leave to be taken in separate blocks of at least six continuous weeks, with a minimum of ten weeks between the two periods.

Where an employee falls ill during the period of parental leave, and becomes unable to care for the child, they are entitled to suspend and postpone the parental leave until the end of the illness.

The bill seeks to extend the entitlement to take parental leave to persons acting in loco parentis. It also seeks to extend the entitlement to force majeure to persons who reside with the employee in relationship of domestic dependency.

It clarifies that the “sexual orientation of the persons concerned is immaterial”, thereby clearly extending the entitlement to force majeure leave co-habiting same sex couples.

The bill has been criticised for failing to introduce payment for employees taking parental leave, as is the case in a majority of European Union member states. Surprisingly, it fails to address the issue of paternity (as distinct from parental) leave, which remains unrecognised in Irish Law.

It does not make any provision for bereavement or compassionate leave. For the time being, paternal and bereavement leave remain entirely a the discretion of the employer.