Maternity Protection Acts 1994 and 2004

The Safety, Health & Welfare at Work (General Application) Regulations 2007 S.I. 299 of 2007

Maternity Protection Act 1994 (Extension of Periods of Leave) Order 2006 S.I. 51/2006

Rights under the Maternity Protection Act, 1994 apply to:

  • All pregnant employees;
  • All employees who have given birth in the previous 14 weeks;
  • All employees who are breastfeeding up to 26 weeks after the birth, provided they have notified their employer of their condition.

No minimum length of service is required. It should be noted that employers aren’t obliged to pay women on maternity leave, in the absence of any contractual obligation. Women may be entitled to Maternity Benefits, which are administered by the Department of Social Protection.

Qualifying employees are entitled to:

  • For women who commenced maternity leave on or after 1 March 2007, 26 consecutive weeks of maternity leave, including at least 2 weeks before the expected date of birth and at least 4 weeks after the birth;
  • 16 weeks additional maternity leave (optional);
  • Social welfare payment (if applicable), during the initial 26-week maternity leave period only.

Employees must give employers at least 4 weeks written notice before:

  • Taking maternity leave;
  • Taking additional maternity leave;
  • Returning to work.

The main provisions of the Maternity Protection Acts 1994 and 2004, as amended by the 2006 Order, are as follows:

  • Provision, subject to the employer’s agreement, for the termination of (unpaid) additional maternity leave in the event of sickness, at which point sickness leave will commence;
  • Provision, subject to the employer’s agreement, for the postponement of maternity leave/additional maternity leave in the event of the hospitalisation of the child;
  • Provision for expectant mothers to attend one set of ante-natal classes without loss of pay;
  • Provision of a once-off right to fathers to paid time off to attend the last 2 ante-natal classes;
  • Provision for breastfeeding mothers who have given birth within the previous 26 weeks to an entitlement, without loss of pay, to either breastfeeding breaks, where breastfeeding facilities are provided by the employer, or a reduction of working hours; and
  • Provision that the period of an employee’s absence from work on additional maternity leave will count for all employment rights associated with the employment (except remuneration and superannuation benefits), such as seniority and annual leave.

Natal Care Leave

Employees are entitled to paid time off, to receive antenatal or postnatal care.

Where possible, two weeks’ notice of appointments should be given to the employer.

Father’s Leave

If a mother dies during maternity or additional maternity leave, the father may avail of the outstanding balance of the leave.

Stillbirths and Miscarriages

If an employee has a stillbirth or a miscarriage any time after the 24th week of pregnancy, she is entitled to full maternity leave, as detailed above.

Health and Safety Leave

Employers are required to perform separate risk assessments to identify any risk to which employees who are covered by the Maternity Protection Acts might be exposed. If a risk is established, the employer should remove it or transfer the employee to suitable alternative work. In case no such work is available, the woman must be granted health and safety leave.

Employers are obliged to pay employees for the first three weeks of health and safety leave, after which social welfare benefits may apply.  To employees who normally work at night, Health and Safety provisions may also apply (subject to medical certification). Other than the right to remuneration, all employment rights are either preserved or suspended during protective leave.

Employment Equality Acts 1998 – 2011

Under the Employment Equality Acts 1998 – 2011, specific protection against direct or indirect discrimination is provided for pregnant employees and in relation to maternity leave. Any complaints must be brought within 6 months of the last act of alleged discrimination.

The legislation extends to:

  • Advertising;
  • Equal pay;
  • Access to employment;
  • Vocational training and work experience;
  • Terms and conditions of employment;
  • Promotion or re-grading;
  • Classification of posts;
  • Dismissal and collective agreements.

Returning to Work

Section 18 of the Maternity Protection (Amendment) Act 2004 S.I. 28/2004 provides that an employee is entitled to return from maternity leave to the same job and to the same terms and conditions. Section 27 of the same Act provides that the employer is under an obligation to provide suitable alternative work if a return to the exact job is not reasonably practicable. The employee’s terms and conditions of any new role must not be substantially less favourable than the ones prior to maternity leave, and the employer is obliged to incorporate any improvements to terms and conditions that the employee would have been entitled to had she not been absent. Before returning to work, employees must give employers at least four weeks written notice.

Procedures and Enforcement

Disputes arising under the Act, with the exception of claims for unfair dismissal, may be referred to a Rights Commissioner. Such dispute must be referred within six months of the alleged breach, with an extension of twelve months allowed only in “exceptional circumstances”. An appeal to the Employment Appeals Tribunal must be made within four weeks of the decision of the Rights Commissioner. There’s an appeal to the High Court from a determination of the Employment Appeals Tribunal on a point of law only. A claim relating to dismissal can be brought under the Unfair Dismissal Acts 1977-2007. It’s important to note that the one-year continuous service requirement under the Unfair Dismissals Acts 1977-2007 doesn’t apply where the employee is dismissed as a result of pregnancy, giving birth or breastfeeding, or any matters connected therewith.