Barry Reynolds and Chris Ryan from DAC Beachcroft report on updates to Parent’s Leave and Adoptive Leave, which form key developments in Ireland’s work-life balance strategy.
The challenges for working parents, and in turn for businesses, including the types of leave which are available, have never come more under scrutiny than in the past year and a half. The inadequacies of our pre-existing parental supports have come in to focus, but of course there are no easy solutions.
The Family Leave and Miscellaneous Provisions Act 2021 forms part of the Government’s work-life balance strategy. It came into force in April of this year. Whilst not intended to be a type of leave directed at responding to unforeseen emergencies, it will be welcomed by working parents and it also redresses a number of anomalies. In summary, the significant changes to parental leave entitlements include an additional three weeks’ leave for eligible parents, including adoptive parents. In addition, adopting couples can now choose who in the relationship takes adoptive leave.
Parent's Leave
Parent’s Leave supplements more longstanding types of leave, such as Maternity, Paternity, Parental and Force Majeure Leave. So, what is Parent’s Leave? Not to be confused with Parental Leave, it is a statutory entitlement which allows either parent time off to look after their children. It was first introduced in 2019 with two weeks’ paid leave in respect of a child born after November 1, 2019
The leave had to be taken by parents within the first 52 weeks of the child’s birth or 52 weeks of the adoptive placement in the event of adoption. This has been extended by the most recent changes, with relevant parents now being entitled to take up to five weeks’ leave within the first 104 weeks of the child’s birth or 104 weeks of the child being placed with the adoptive family. Parents who have already availed of two weeks’ leave prior to April 2021 also benefit from this extension; they too can avail of the additional three weeks’ leave, subject to the rules around the birth or placement date of the child.
Who can take Parent’s Leave? An employee may be deemed a relevant parent for these purposes if he or she is:
• a parent of the child;
• a spouse, civil partner or cohabitant of the parent of the child;
• a parent of a donor-conceived child;
• the adopting parent of the child;
• the spouse, civil partner or spouse of the adopting parent of the child (if the parents have not adopted jointly).
Employers should now therefore note, as part of their policies and procedures and resourcing and work-life balance plans, that employees within the above categories, in respect of each eligible child, may be entitled to take up to five weeks’ leave. This can be taken in either one continuous block of five weeks or in separate blocks of a minimum of one week each.
How employees go about taking Parent’s Leave remains unchanged. Employees are still required to give six weeks’ notice in writing of their intention to take leave, setting out the start date and duration. If leave is to be taken in separate blocks, then separate notice must be given in advance of each period. An important distinction for this type of leave, unlike Parental Leave, is that Parent’s Leave is non-transferable. Parent’s Leave operates on a use-it-or-lose-it basis. This means that if leave is not taken before the child’s second birthday or within two years of an adoptive child’s placement, the entitlements may be lost.
Is there an entitlement to be paid by the employer? There is no statutory obligation to pay salary during periods of Parent’s Leave. Other employment rights are protected during these periods.
Employers should note that Parent’s Leave is set to increase to seven weeks in August 2022 and nine weeks in 2024 in line with the Government’s work-life balance strategy.
Adoptive Leave
Adoptive Leave was introduced in 1995 and has developed over time. The current entitlement is up to 24
weeks’ paid ordinary leave and an additional 16 weeks’ unpaid Adoptive Leave. This has been a right of adoptive mothers and in limited cases sole male adopters. Adopting fathers could avail of this leave only in the event that the adopting mother died. One of the consequences of this was that same-sex couples were unable to avail of statutory Adoptive Leave.
This position has now been rectified so that couples jointly adopting a child can elect which parent will take Adoptive Leave. In addition, the recent changes have also allowed for Paternity Leave for the parent who is not availing of Adoptive Leave, thereby affording greater flexibility to many couples.
The rules relating to how employees take Adoptive Leave remain unchanged. Employees must give their employers at least four weeks’ notice in writing of their intention to take Adoptive Leave, and like many other forms of leave to include Maternity Leave and Parent’s Leave, there is no statutory obligation to pay employees during periods of Adoptive Leave but their contractual rights are protected during that period.
Government’s work-life balance strategy and will be welcomed by working
parents.
What will these changes mean for employers?
So what should employers do to implement these recent changes? Businesses have the right to postpone Parent’s Leave in certain circumstances e.g. the unavailability of replacement employees. Careful consideration must be given to refusing requests. Refusals run the risks of potential claims, including for discrimination under equality legislation. These risks, in summary, arise where an employee is treated less favourably than another connected with one or more of the protected grounds. Employers will wish to ensure that they take as consistent an approach as possible and consider documenting reasons for any postponement or differing treatment of one employee over another. That treatment must be unrelated to any protected characteristic, of which gender is only one, of course
That said, the option to take leave in five separate blocks may work well in most scenarios for both parties and in particular where the relatively long period of notice, being six weeks, can be adhered to. It may be no more impactful than periods of annual leave.
These changes will be very welcome for parents and are important in encouraging and safeguarding diversity and inclusion. They provide for greater flexibility when it comes to looking after new children, especially for same-sex couples.
The significant notice period - six weeks for taking Parent’s Leave - will immediately make it obvious that this is not intended to function primarily as a type of leave to deal with unforeseen emergencies. However, there is an exception to this six-week notice period where a child is born four or more weeks premature. In this instance, a relevant parent will be deemed to have given the requisite notice if notice is given within seven days after the birth of the child.
We still really have only one type of emergency leave to look after children and other family members, Force Majeure Leave, and that is very limited in scope. It is available where, for urgent family reasons, the immediate presence of the employee is indispensable owing to an injury or the illness of a close family member. Where applicable, an employee will be entitled to paid leave for up to three days in a 12-month period or up to five days in a 36-month period. The other options available are annual leave or agreed unpaid leave or, more increasingly across various sectors, flexible working time. However, options for flexibility are often limited for many businesses, including in respect of retail positions, where customer needs and opening hours determine when staff are needed in stores, not to mention other aspects of ensuring the supply chain functions effectively. There is no simple solution.
Changes in the pipeline
There are many legislative changes on the way, however. These include various measures which also warrant handbook reviews. and pre-planning by businesses. Statutory sick pay is soon to be introduced as part of the overall response. Other measures have been mooted – but various Bills have not yet resulted in any changes of note in terms of balancing childcare with business needs during emergencies e.g. proposed amendments to Force Majeure Leave for parents whose children are unable to attend school or a pre-school service by reason of Covid-19. The difficulties experienced by businesses and by staff during the various emergencies presented by the ongoing pandemic unfortunately remain and there is no simple solution.
Employers need to prepare for an increased emphasis on flexibility. Imminent changes include: an imminent statutory right to request remote working, expected this year; and, possibly in 2022, a right to request flexible working in connection with Ireland’s obligations under the EU Directive on Work-Life Balance. Neither development will give rise to an automatic right to work remotely or to work flexible hours. However, there will be requests for both of these arrangements. The types of requests which businesses will receive will most likely include requests along the following lines:
• starting or finishing work at differing times;
• working compressed hours;
• having access to flexi-time;
• being able to work remotely;
• access to part-time or shared working options
Of course, some of these may be more apt for some roles than others. In appropriate cases, businesses will have a statutory obligation to consider these requests. Many will be granted, it is expected. Others will be refused or refined. Businesses will have to justify any refusal, most likely with a written, objective and reasoned response on why the request cannot be facilitated at that time or in full.
Flexible working hours must also be reconciled with the principles of the recent code or proactive on the so called right to disconnect. This includes management of calls and emails from those who may be working outside core hours to those who are not working those non-core hours.
Key takeaway for employers
Employers should review their handbooks and leave policies on a regular basis. For employers that have not put in place policies, they are strongly encouraged to do so on the basis that it is only a matter of time before an employee puts in a request for Parent’s Leave.
Management will need guidance on how to handle such requests. More often than not, the request can simply be granted. However, the responses must be consistent and considered. Can requests be postponed? What are the relevant timeframes? What policy on pay is in place and will the employer ever grant an exception? These issues warrant consideration.
For most employers, the minimum for now is to update existing handbooks or policies to reflect the changes to leave entitlements. Employers should also keep a close eye on the various other changes for working arrangements and leave entitlements as they are introduced over coming months.
If you have any queries or require any assistance in relation to any of the above, please contact Barry Reynolds or Chris Ryan.
About the authors:
Barry Reynolds (breynolds@dacbeachcroft.com) and Chris Ryan (chryan@dacbeachcroft.com) of DAC Beachcroft are specialists in employment law. This article is for general information purposes only and does not comprise legal or professional advice. You should not rely on any of the material in this article without seeking appropriate legal advice. Twitter: @dacbeachcroft LinkedIn: DAC Beachcroft Dublin
