Wednesday 16 October 2019

Maternity leave is a highly-protected area, so be sure to deliver on your requirements

Caroline McEnery, managing director of The HR Suite, is a member on the Low Pay Commission and is an adjudicator in the Workplace Relations Commission.
Caroline McEnery, managing director of The HR Suite, is a member on the Low Pay Commission and is an adjudicator in the Workplace Relations Commission.

Caroline McEnery

Q: I have an employee who has told me she is pregnant. I have never had an employee who will be going on maternity leave, so what advice can you give me to ensure I am compliant?

A: The area of maternity leave is highly protected in Ireland. It is covered by the Maternity Protection Acts 1994 and 2004 and Maternity Protection (Health and Safety Leave Remuneration) Regulations, SI 20/1995.

Your employee is therefore entitled to 26 weeks of maternity leave with the option of taking an additional period of 16 weeks unpaid. You, as the employer, are not obliged to pay maternity leave.

Firstly, you must ensure that your company handbook has a detailed policy that covers maternity leave. This will help you and your employee understand what is expected from both parties.

For example your policy should outline:

That the employee is required to observe notification procedures in line with the legislation. This is at least four weeks' written notice of her intention to take maternity leave;

A medical certificate is required confirming pregnancy and specifying the expected due date.

Your employee may take reasonable time off for medical visits connected with the pregnancy, with no maximum amount of time off specified.It is simply as much time off as is necessary to attend each visit. Do ask your employee to provide medical evidence of these appointments giving two weeks' notice. She is entitled to be paid while keeping these medical appointments.

You have a duty to carry out a risk assessment with each and every pregnant employee. Risks should either be removed if possible or the employee moved away from them.

For example, if the employee is required to stand for the entirety of the shift to serve customers, is this a risk?

Can you remove the risk by making a chair available or by moving the employee to different duties in the office?

If neither of those options is possible, health and safety leave will have to be considered up to the beginning of maternity leave. You, as the employer, must pay your employee her normal wages for the first three weeks of health and safety leave if it is invoked.

Maternity leave must commence at least two weeks prior to the expected due date. So if your employee gives you a due date of December 25, 2019, she will start her maternity leave at least two weeks in advance, which is December 11, 2019. The last day of work will be December 10, 2019, with a return-to-work date of June 12, 2020.

In the event of an unfortunate premature birth, maternity leave will commence immediately from the date of birth.

The time between the birth and the date of birth as per the original medical cert will be additional to the statutory 26 weeks' of maternity leave for your employee.

Your employee is entitled to an additional period of 16 weeks' leave, which must be taken immediately following the maternity leave.

There is no payment from Social Welfare during this 16-week period.

She must inform you of her intention to take such leave no later than four weeks before the end of the maternity leave period.

Given the example above, this would mean she will have to give you notice no later than May 14, 2020. If the employee opted to take the additional maternity leave of 16 weeks unpaid, this would commence on June 11, 2020, with the finish date October 1, 2020 and the return-to-work date of October 2, 2020.

Your employee will accrue annual leave and public holidays during maternity leave, as if she was still in work. She may return to work at any time from four weeks after the date of birth.

On her return, your team member has the right to return to work to do the same job, under the same contract of employment, in the same conditions, or ones not less favourable than before the leave was taken.

If the above is not possible or practical she must be offered a suitable alternative under a new contract. We would urge you to seek best practice advice on this if there is a potential that this may occur as maternity leave is so highly protected.

Caroline McEnery, managing director of The HR Suite, is a member on the Low Pay Commission and is an adjudicator in the Workplace Relations Commission.

Sunday Indo Business

Also in Business