Ireland: New paternity leave law could benefit up to 40,000 fathers
It is estimated that between 30,000 and 40,000 fathers a year will apply for the new paternity leave benefit which entitles a ‘relevant parent’ to claim two weeks’ continuous paid leave from his or her employment within 26 weeks of the birth/adoption of their child.
Main terms of the new legislation
The terms of the Paternity Leave and Benefits Act 2016 apply to births and adoptions on or after 1 September 2016 and provides for a payment by the Department of Social Protection (DSP) of paternity benefit of €230 per week for a ‘relevant parent’.
A ‘relevant parent’ is defined as a person who is the spouse, civil partner or cohabitant of the adopting mother or sole male adopter or child, or in any other case, the father of the child, the spouse, civil partner or cohabitant of the mother of the child, or a parent of the child as defined under Section 5 of the Children and Family Relationships Act 2015. The new law places same-sex couples on an equal footing with other couples.
An employee can commence paternity leave at any time within the first six months of the birth or adoption placement, but is expected to give four weeks’ notice of their intention to do so. The employee’s entitlement to pay and superannuation during paternity leave depends on the terms of their employment contract.
All employees, including casual workers, are entitled to claim the leave – regardless of how long they have been in their job, or how many hours they work per week. Self-employed people who pay social insurance contributions are also entitled to the benefit. Only a single period of two weeks’ paternity leave is available – parents with twins, for example, cannot claim twice the amount. Any disputes will be dealt with by the adjudication officer of the Workplace Relations Commission.
The Act allows for the leave to be postponed in certain circumstances, such as a late birth, sickness of the relevant parent, or hospitalisation of the child.
Section 16 of the Act deals with abuse of paternity leave, where employers can terminate the leave if they have reasonable grounds for believing that an employee is not using the leave to ‘provide, or assist in the provision of, care to the child or to provide support to the adopting mother, sole male adopter or mother of the child, as the case may be, or both’.
The Act provides the same protections for employees as for mothers taking maternity leave, so that they cannot be sacked or suspended while on paternity leave.
Employers must keep records of paternity leave taken by their employees. These records must include the period of employment of each employee and the dates and times of the leave taken. Employers must keep these records for eight years.
An employee who has taken paternity leave is entitled to return to work with the same contract of employment. However, if it is not reasonably practicable for an employer to return an employee to their specific job, they must provide suitable alternative work on terms that are not substantially less favourable than those of the previous job. Paternity benefit will not be paid for any period spent outside the EU, but it will be paid for any period spent in another EU country.
The DSP estimates that 30,000–40,000 fathers could decide to apply for the benefit each year.
Reactions by employers and unions
Employers are not obliged to pay employees their normal salary while on paternity leave, though some may choose to do so voluntarily. An employee’s contract could provide, for example, that the employee would receive full pay, less the amount of paternity benefit payable.
Maeve McElwee, Director of Employer Relations for the main employer body, Ibec, said that most employers would welcome the new legislation. The independent Industrial Relations News commented that Ibec’s position reflected an understanding that paternity leave is a reality in a modern European economy and society. However, Ibec has pointed out that maternity benefit has very specific legal protections and, due to established exemptions for maternity payments in EU law, it believes employers will not be obliged to ‘top up’ paternity pay even when a maternity ‘top up’ is paid.
In a statement issued on 6 November 2015, the Irish Congress of Trade Unions (ICTU) welcomed the development, adding that it had been ‘a long-standing demand of Congress’.
The Minister for Justice, Frances Fitzgerald, told the Irish parliament (Dáil) that it was in a child’s best interests to benefit from the care of both parents. She welcomed the support of the opposition in securing the passage of the legislation (the provisions were non-contentious in the debate). The Minister said the legislation provided parents with the ‘flexibility to choose when they take the time off to care for their young child’.
The main opposition party, Fianna Fáil, also welcomed the Act, with spokesperson Fiona O’Loughlin commenting that Ireland has ‘been behind’ in relation to parental leave and that it still has a long way to go. Norway, for example, allowed fathers to receive 10-weeks’ parental leave, she said.
Sinn Féin’s Junior Spokesperson on Social Protection, Denise Mitchell, said she hoped the legislation was an indication of a greater change within the government towards helping parents, while the Labour Party’s Brendan Ryan said endorsing the principle of parental equality was long overdue.