Maternity, Adoptive and other forms of leave from Employment
Paid leave of absence for mothers, whose babies are born through surrogacy arrangements, falls outside the scope of the law.
In September 2013 The European Court of Justice found that an Irish teacher (Ms. Z), whose child was born through surrogacy, did not have an automatic right to either paid Adoptive Leave or Maternity Leave from her employment. When Ms. Z’s application for paid Adoptive Leave was denied she brought a complaint to the Equality Tribunal. The woman, who has no uterus as a result of a rare medical condition, claimed that she was discriminated against on the grounds of sex, family status and disability.
The woman was told by her employer that she could take unpaid parental leave instead of the requested Adoptive Leave; however, as the child was genetically hers and her name was on the American birth certificate, Ms. Z felt that she was being treated unfairly.
The surrogacy scenario can be a challenging one for all concerned and blurred lines surrounding what mothers are entitled to in the workplace just adds to the complexity of the situation.
The Equality Tribunal referred the case to the European Court of Justice which found that the woman did not have any automatic right to Adoptive Leave.
The legal opinion of the Advocate General stated that her differential treatment was not based on sex, family status or disability, as claimed, but instead on the “refusal of national authorities to equate her situation with that of either a woman who has given birth or an adoptive mother”.
The recent revelation, that Irish women who have babies through surrogacy arrangements are not afforded the same rights as mothers who have adopted or given birth to their babies, has highlighted the uncertainties/complexities surrounding the issue of surrogacy in both Irish and
EU law.
Rights to Maternity and Adoptive Leave defined:
If an employee becomes pregnant while employed in Ireland she is entitled to take Maternity Leave. This entitlement extends to all female employees regardless of their length of service and the number of hours worked per week etc.
Since March 1st 2007, employees have a statutory right to 26 weeks’ Maternity Leave. A further 16 weeks’ Additional Maternity Leave is available to them should they wish to take advantage of it. Employees are not obliged to avail of the entire period of leave open to them; however,
they must take a minimum of two weeks prior to the birth and at least 4 weeks after giving birth.
If the baby is born prematurely then Maternity Leave starts on the day the baby is born.
Employees are obliged to notify their employer of their wish to take Maternity Leave as soon as is reasonably practicable (not later than 4 weeks prior to the desired commencement date). Employees must produce a medical certificate confirming the expected birth date. Employers must give paid time-off for doctor/midwife recommended medical appointments for all
pregnancies and employees are also entitled to attend one set of antenatal classes during one pregnancy. The employer should be given written notice 2 weeks in advance of such appointments. Expectant fathers are also entitled to be paid by their employer while attending one set of antenatal classes.
While some do, it is important to remember that employers are not obliged to pay employees while they are on Maternity Leave. Employees who have contributed enough PRSI can apply for Maternity Benefit from the Department of Social Protection. Employers, who do continue to pay employee salaries during Maternity Leave, often require the employee to forward to them any
Maternity Benefit Payment from the Department of Social Protection.
Most employees do not have any right to remuneration from their employer during Additional Maternity Leave and there is no state benefit payable during this time, however, employees are still entitled to avail of this extra 16 weeks away from the workplace immediately after the conclusion of their regular Maternity Leave. It is important to note that Employees must
apply to their employer in writing 4 weeks prior to the conclusion of their Maternity Leave if they wish to avail of this Additional Maternity Leave.
Employees are protected against discrimination or loss of employment through redundancy or dismissal on grounds relating to pregnancy and Maternity Leave. Employees must give notice of their intention to return from Maternity Leave at least 4 weeks prior to doing so. Employees must return on the same terms and conditions as when they left (unless this in not reasonably
practicable).
There is an obligation on the employer to carry out a specific risk assessment for employees who are pregnant, and for those who are breastfeeding or who have just given birth, in order to assess whether there are any workplace hazards for these employees. Should this risk assessment determine that hazards (that cannot be eliminated) exist the employee will be
moved to alternative work or, if this is not feasible, the employee will be granted health and safety leave. The employee is entitled to payment from the employer in respect of the first 21 days of such health and safety leave and can apply for social welfare benefit for any period thereafter.
Adoptive Leave:
When an employee is adopting a child she is entitled to a minimum of 24 consecutive weeks’ ordinary Adoptive Leave starting on the day of placement of the child. Only the adoptive mother is entitled to avail of Adoptive Leave from employment, except in the case where a male is the sole adopter.
There is no statutory obligation on employers to provide pay to employees while they are on Adoptive Leave – some companies, however, do offer this benefit to employees. Individuals may be entitled to Adoptive Benefit from the Department of Social Protection.
Employees are also entitled to take 16 weeks' additional unpaid Adoptive Leave immediately following the period of standard Adoptive Leave. As is the case with Additional Maternity Leave, Employees must apply for the Additional Adoptive Leave in writing 4 weeks prior to the end of ordinary Adoptive Leave. In special circumstances, for instance cases involving foreign adoption, Additional Adoptive Leave may be taken at a time not directly following the regular Adoptive Leave period.
An employee’s entitlement to Annual Leave and Public Holidays will continue to accrue as normal during Maternity Leave and Adoptive Leave.
It is essential for employers to remember that, similar to other forms of protective leave, employees are entitled to return to the role they held immediately before commencing Adoptive Leave, subject to the employee having notified the employer of the intention to return to work, not later than four weeks before the date of expected return.
The probationary period should not in any case exceed eleven months in total. The employee should receive notice of the Company’s intention to extend the probationary period before or at the end of the initial 6 month probationary period.
A clause should allow that any continuous period of absence of four weeks or more would suspend the probationary period until the employee’s return to work.
To avoid any risk of discrimination, policies (like the probationary period outlined above) should be fair and consistent and should apply to all new employees throughout the Company. In disciplinary proceedings, when dealing with employees on probationary periods, progressive steps can be skipped but it is a common misconception that fair procedures and natural justice need not be adhered to during the probationary period.
The Unfair Dismissals Acts 1997-2007 will not apply to the dismissal of an employee during a period at the beginning of employment when he/she is on probation or undergoing training provided that:
•the contract of employment is in writing
•the duration of probation or training is one year or less (including annual leave) and is specified in the contract
It is important to bear in mind that this exclusion from the Acts will not apply if the dismissal results from trade union membership or activity, pregnancy related matters, or entitlements under the maternity protection, parental leave, adoptive leave and carer's leave legislation.
Since 2001 The HR Company, B2E Ltd. has been successfully providing a cost-effective HR and advice support service(s) for small to medium sized businesses (SMEs) across Ireland. The HR Company also assists several large corporations and multinationals with their HR operations. With so many pieces of employment legislation in place in Ireland it is a challenge for companies to ensure that they are fully compliant on all counts. The HR Company is an Irish-owned company headed up by Philip Carney, former head of HR for Microsoft’s European Operations Centre, and Angela O’Grady, former Staffing and Recruiting Manager. A team of 20 HR specialists provide peace of mind for Employers by guiding them on all aspects of Irish Employment Law.
The HR Company provides a very affordable 24/7 protection service to those who wish to offload the burdens and risk associated with HR activities. Whether it relates
to disciplinary procedures, annual leave, redundancy or anything in between; a dedicated account manager is at the end of a phone to guide Employers and help insulate companies whenever a query about best practices in HR arises.
Not only does The HR Company provide bespoke employment documentation to ensure companies pass a National Employment Rights Authority (NERA) inspection, tailored disciplinary letters and any other relevant material are prepared by dedicated account managers to ease the load on the Employer. The HR Companyacts as the eyes and ears of the Employer on all HR related issues – protecting companies by keeping them informed on any relevant legislation updates.
In this era of increased employee litigation employees know their rights – companies should shield themselves against the risk of a costly dispute by arming themselves with the best on-call
support.
So far as is reasonably possible, employers are legally obliged to ensure the safety and welfare at work of all employees. Likewise, employees have a responsibility to themselves and to their colleagues. The use of alcohol and/or unauthorised drugs may disturb the safe and efficient running of a business. It can hinder the health and safety of employees within the organisation as well as the customers and other stakeholders.
Companies should operate a ‘zero tolerance’ policy when it comes to drugs and alcohol and
employees should not be permitted to work while under the influence of drugs or alcohol under any circumstances. Employees must adhere to all medically prescribed drug instructions and if the medication is likely to cause any side effects that could impair the employee’s levels of concentration or ability to carry out his or her work then he or she should communicate this to Management.
If an employee’s performance or attendance at work is affected as a result of alcohol or drugs, or the employer believes the employee has been involved in any drug related action/offence, disciplinary action may be required. Dismissal may be warranted in severe circumstances.
It should be clearly communicated to employees that anyone involved in the unlawful possession, use, sale or manufacture of controlled substances or illicit drugs etc. on Company premises, in Company vehicles/work sites or during working time will be subject to disciplinary action up to and including dismissal. They should also be referred for prosecution.
Companies should also include a drug and alcohol testing policy in their employee handbook to improve their rights in these situations.
Smoking regulations for employees:
In line with statutory provisions companies are obliged to operate a strict smoke-free
workplace policy. Employers should make their employees fully aware that any member of staff who breaches this policy will be subject to disciplinary action up to and including dismissal. It is imperative that employers enforce the law. 
The recommendation, which is binding under the terms of the Haddington Road Agreement, was issued on 18th September, 2013, and will affect the employment terms and conditions of approximately 10,000 workers. It is important to note that this agreement only applies to Home Helps who are employed by the HSE. Individuals employed by private companies or not-for-profit providers are not covered by this Labour Court recommendation.
Services Industrial Professional and Technical Union (SIPTU) has been campaigning since 2009 in a bid to secure adequate contracts and security of earnings for its members. The Union has welcomed the Labour Court decision which brings an end to the extensive system of zero-hour contracts. Paul Bell, SIPTU Health Division Organiser, stated that the agreement put the terms and conditions of Home Helps on a “firm and binding platform for the first time since the community service was established thirty years ago”.
A Zero-hours contract is a type of employment where an employee must be available for work but does not have specified or guaranteed hours or a formal roster. This can cause challenging circumstances for employees where the hours of work as well as earnings are unpredictable.
This Labour Court agreement provides for the issuing of annualised contracts guaranteeing a minimum of seven to 10 hours of work per week for each Home Help. Caroline Jenkinson, Labour Court Deputy Chairman, explained that “the number of hours to be allocated to each person will be based on 80 per cent of their actual hours worked in the six-month reference period between October 1st, 2011, and March 31st, 2012, with a minimum guarantee of seven hours”.
In addition to welcoming the removal of the zero-hours system Mr. Bell of SIPTU applauded a HSE effort to reorganise and manage the Home Help hours on a county by county basis.
Those who choose not to work under the annualised hour scheme may be entitled to receive compensation of between €2,000 and €3,000 under an exit deal.
Bullying or harassment isn’t always obvious – in fact it can come in many shapes and forms – some examples are:
•Social exclusion or isolation
•Damaging someone’s reputation through gossip or rumour
•Any form of intimidation
•Aggressive or obscene language or behaviour
•Repeated requests for unreasonable tasks to be carried out
Employers Beware:
Under current Irish employment legislation (The Employment Equality Acts 1998-2011) companies are accountable when it comes to bullying and harassment in the workplace or workplace disputes. It is vital for employers to be mindful of the legislation as companies are answerable for the actions of employees, suppliers and customers even in cases where the company is not aware that bullying or harassment is taking place.
To defend itself a company must illustrate how it did everything reasonably practicable to prevent bullying and / or harassment from taking place in the workplace. The company must also show that when an instance of bullying or harassment occurred the company took immediate, fair and decisive action.
There is a huge risk of exposure if companies do not adhere to the strict Regulations. Those found in violation of the Act may be liable for fines and in severe circumstances imprisonment on summary conviction. Companies can also end up paying out large sums in compensation.
Bullying creates a very hostile work environment and can negatively affect employee performance – It can lead to disengagement and low levels of morale. It can also cause a company to lose key members of staff. Bullying can affect both the safety and the health of employees – this violates the Safety, Health and Welfare at Work Act 2005.
It is abundantly clear that it is in the best interest of all stakeholders to prevent bullying or harassment of any form in the workplace.
In order to avoid bullying and harassment an employer should include harassment-related policies and procedures in the Employee Handbook – A Dignity at Work Policy should be communicated clearly to employees. This will clarify what is expected of employees and what the protocol/repercussions are if bullying/harassment does occur.
Last week the Immigrant Council of Ireland (ICI) brought our attention to a shocking statistic – The ICI revealed that the number of racist incidents reported in Ireland over the last 12 months had jumped to a staggering figure – They dealt with 120 individual racism cases in the past
year. 52 of these instances were reported in June/July of 2013 alone marking a huge increase when compared to the same period in 2012 when just 3 incidents were reported.
The racism reported related to alleged discrimination, written harassment, verbal harassment and physical violence.
The most commonly reported setting for racism was the workplace – where a massive 20% of reported incidents occurred.
Employers need to be vigilant and need to make more of an effort to consciously crack down on this type of activity.
It is at times like these that Companies need to concentrate on their Human Resource functions even more. Some elements of HR, however, can be both complicated and time consuming – an enormous burden on Employers. In recent years the focus has moved towards legal compliance (which can be a minefield with all of the pieces of Employment Legislation currently in operation) and administrative processes that can slow down the productivity of the firm.
For SMEs in particular, it makes a lot of business sense to outsource HR tasks as firms specialising in the field can improve efficiency dramatically. Outsourcing allows Companies to offload work that isn’t part of their core business. It also saves money. At a Company that doesn’t have the funds to hire specialists outsourcing can allow it to gain access to a vendor’s services when required as well as the expertise and wealth of experience that they have accumulated – all at an affordable price.
While SMEs don’t have the same number of Employees as larger corporations and multinationals they still require the same HR elements on a smaller scale. For instance, they still need to recruit staff, they still need to abide by the vast array of Employment Laws and still require Employment Documentation (Contracts of Employment etc.).
HR Companies deal with all features of Human Resources comprehensively. They have a base of specialist Employees who are trained and experienced in all areas of Employment Law – meaning they are fully equipped to deal with any Employee Relations issues that arise in the workplace. Engaging the services of HR professionals gives Employers access to a bank of relevant knowledge and experience. HR Companies are well prepared to support or advise SMEs without costing an arm and a leg. They keep up-to-date with all changes in Irish Employment Legislation and are able to offer better support and guidance than the client can attain in-house. Navigating Government regulations can be a draining activity for Employers, - it can be a time consuming and complicated process, however, it is what HR advisors are trained to do.
HR firms can do a lot more than you might think – not alone do they have a top-class portfolio of skills, knowledge and experience concentrated in this specific area, they can offer a range of services and support at an extremely affordable price. Some HR Companies provide comprehensive services for as little as €100 per month – Hiring a HR Employee, even on a part-time basis, would cost far in excess of this. Similarly, many Employers currently engage the services of Solicitors to prepare Contracts of Employment and other Employment Documentation – this can also be an extremely costly process.
HR Companies prepare Employment Documentation for their clients and on top of that are there to advise on all individual Employee related issues – discrimination claims, rest and annual leave entitlements, disciplinary and redundancy procedures, dismissals, grievances and much more. Lots of Companies operate outside of office hours and so some HR Companies even provide 24/7 advice lines for their clients meaning a client will never have an anxious wait for an answer. HR firms also provide support to existing HR departments within Companies - the level of service and associated costs are completely dependent on the needs of the individual Company.
HR firms are growing in popularity. In the past outsourcing was often a difficult process because of the issues distance can sometimes create. Thanks to the advances in technology, however, dedicated HR experts are only a couple of clicks or a phone call away – so Human Resource emergencies can be dealt with on the spot. 
