Sunday 21 January 2018

Day of the dad: What new paternity leave law means for your business

'Paid' paternity leave will come from the State, not from the employer in question
'Paid' paternity leave will come from the State, not from the employer in question

Alan Price

In Budget 2016 the Government pledged to introduce a two week paid benefit for fathers to take paternity leave. The Paternity Leave bill was signed into law on August 2

The previous position?

Prior to the new law being passed, in Ireland there was no statutory entitlement for fathers to paternity leave. As a result, it is up to the employer and employee to agree a contractual entitlement to paternity leave or alternatively to agree that the employee take annual leave or unpaid leave around the birth of their child.

What will employees be entitled to?

As above, from September 1 a 'relevant parent' of a child will have a statutory entitlement to two weeks' paid paternity leave. A relevant parent includes (a) a child's father, (b) the spouse/cohabitant. Civil partner of the child's mother, (c) the parents of a donor-conceived child, or (d) a sole male adopter.

If a same-sex couple is adopting a child then only one of them can be the 'relevant parent'. In the event of multiple births or adoptions, only one two week period applies.

So will I have to pay employees for this time off?

No. This leave will run similar to maternity leave whereby employees are entitled to receive payment from the Department of Social Protection for the duration of paternity leave. Therefore, whilst you might hear about an entitlement to "paid" paternity leave, this payment will actually come from the State (currently €230). If an employer wishes, they can pay the employee their full wage for the duration of the leave, most commonly done by topping up the social welfare payment.

Importantly, if an employer pays/tops up salary to mothers on maternity leave then there may be an equality issue if relevant parents don't receive the same (eg, a dad not receiving payment could be gender discrimination, a same sex couple not receiving the payment could be sexual orientation discrimination, etc.)

How much notice does an employee have to give of paternity leave?

Similar to maternity leave, the employee must provide four weeks advance notice of their intention to take paternity leave.

Does the employee have to take the leave at the time of the child's birth?

No. The employee can choose to take the leave at any time in the 26-week period following the date of birth (or date of placement in cases of adoption).

Does the employee accrue annual leave and public holidays?

An employee on paternity leave will continue to accrue annual leave, public holidays, continuous service, etc.

Are there any other paternity leave-related protections for the employee?

Employees on paternity leave will have similar protections as exist for mothers taking maternity leave, such as:

• Any dismissal of an employee while on paternity leave is deemed void.

• The legislation will also prohibit the penalisation of an employee for taking paternity leave.

• The employee has the right to return to work in the same or similar post.

• Employees will accrue annual leave and public holiday entitlements on paternity leave.

In the event of the death of the relevant employee in circumstances where they have not taken some or all of their paternity leave entitlement, that remaining entitlement will transfer to the other parent.

It is advisable for employers to review internal policies to ensure they are compliant with new legislation, particularly where they are currently topping up maternity leave benefits.

Alan Price is managing director of Peninsula Ireland

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