Increased entitlement to parental leave from September
Unpaid Parental leave changes at a glance
From 1 September an employee’s unpaid parental leave entitlement in respect of each child will increase from 18 to 22 weeks. The unpaid parental leave entitlement for each child will increase from 22 weeks to 26 weeks from September 2020.
This is provided for in Parental Leave (Amendment) Act 2019 which commenced on 19 July of this year which also increased the age threshold by which the leave must be taken 8 to 12 years.
Employers will be aware that the Parental Leave Acts 1998 and 2006, entitled parents of, or persons acting in loco parentis to, children aged up to 8 years (or up to 16 years if the child has a disability or long-term illness) to 18 working weeks (4 months) of parental leave in respect of each child. As noted above, the Parental Leave (Amendment) Act 2019 increases both the duration and the applicability of the leave; the leave will increase to 26 weeks leave (by 2020) and the age of the child is increased from up to 8 to 12 years old.
In summary, the Parental Leave (Amendment) Act 2019 provides that:
• the number of weeks of unpaid parental leave will increase from 18 to 22 weeks from September 2019;
• the number of weeks of unpaid parental leave will increase again from 22 to 26 weeks from September 2020;
• the age threshold by which the leave must be taken 8 to 12 years;
• there is no change in the age threshold that applies in respect of children with a disability which remains at 16;
• employees who have not exhausted their entitlement to parental leave in respect of a child when that child reached 8 years of age, now have until the child's twelfth birthday to draw down the leave;
• employees who have already taken their 18 week entitlement in respect of a particular child will now have until that child's twelfth birthday to avail of the extra weeks of parental leave introduced under the 2019 legislation;
• employees who previously availed of 18 weeks parental leave and whose child is under 12 years of age are entitled to a further 4 weeks leave which can be taken in blocks comprising of no less than one week ;
• employees who have an outstanding balance of their 18 weeks leave and whose child is under 12 years of age are entitled to take the balance of the untaken weeks along with the additional 4 weeks, in blocks of no less than one week;
• employees who have not previously availed of parental leave in relation to the child concerned are required to take their parental leave for the child in question in a continuous block of 22 weeks (26 weeks from Sep 2020) or two blocks of six or more weeks with a minimum of 10 weeks between each block;
• each parent has a separate entitlement to parental leave from his or her job, up to 14 of their 22 weeks (26 weeks from Sep 2020) of parental leave may be transferred between parents working in the same company with the agreement of the employer;
• where a parent has more than one child, no more than 22 weeks’ parental leave may be taken in any 12-month period, except in the case of multiple births;
• an employee must have one year’s continuous service with the organisation before you are entitled to take parental leave. However, if an employee has more than three months service, and where their child is approaching the age threshold, they will be entitled to one week’s parental leave for every month of continuous employment completed with the organisation;
• any period of probation, training or apprenticeship will be suspended while an employee is on parental leave and will be completed on their return;
• full-time and part-time staff (pro rata) can avail of the entitlement once they fulfil the above criteria.
In the case of adoption
• In the case of a child under 10 years at the time of the adoption, parental leave must be taken before the child reaches 12 years. However, if the child is aged between 10 and 12 at the time of the adoption, the leave must be taken within 2 years of the adoption order.
Notice of intention to take parental leave
• It remains the case that an employee is required to give their employer a minimum of 6 weeks’ notice of their intended commencement date of either:
a. 1 period of parental leave or
b. Multiple blocks of parental leave
Employer’s right to postpone the leave in respect of a particular child
• An employer has a right under the Act to postpone the employee’s intended commencement date of the period (s) of leave in respect of a particular child as outlined in (a) or (b) above for 6 months. The employee’s desired commencement date of the period(s) of leave in respect of that child may be postponed a second time for seasonal reasons.
Fragmentation of an employee’s unpaid parental leave entitlement
• It remains the case that an employer may agree with an employee that they can take their parental leave in a fragmented fashion e.g. 1 day per week. Taking the leave in this fashion is not a statutory entitlement, it is subject to the employer’s agreement.
See Ibec’s sample policy and guideline here.
Paid Parental (Parents) Leave to be introduced from November 2019
It is intended that Paid Parental or ‘Parents’ Leave will be introduced via the Parents Leave and Benefit Bill 2019.
This entitlement is separate to unpaid parental leave and will apply only to parents of babies born on or after the 1 November 2019.
The Bill (yet to be published) is part of the Government’s commitment to increase paid parental leave in the first year of a child’s life.
A draft General Scheme of the Bill was presented to Government on 16 April 2019 and approval was granted for the priority drafting of the Bill.
• It is intended that the leave will be set initially at two weeks per parent. The leave can be taken within 52 weeks of the birth of the child or in the case of an adoption, from the date of placement of the child
• An employee will be required to give their employer 6 weeks’ notice of their intention to take their paid parental leave entitlement. It is our current understanding that there is no notice required from the employee to postpone the leave. It remains to be seen whether an employer will be entitled to postpone an employee’s decision to take paid parental leave.
The leave will be available in relation to babies born from 1 November 2019 onwards. The legislation will need to be enacted no later than the beginning of October 2019.
• The Bill also proposes to address a lacuna in the law, which prevents a male same-sex couple from receiving adoptive leave and benefit. It provides for the repeal of Section 177 of the Children and Family Relationships Act 2015. It further provides for the modification and reintroduction of Section 177 of that Act or an amendment of Section 2 of the Adoptive Leave Act 1995
• The Department of Employment Affairs and Social Protection will make the payment of the benefit. It will be up to individual employers to decide if they will provide a ‘top-up’ payment to the salary level of employees earning more than this. Given that paid parental leave is expected to increase over time, employers are encouraged to give careful thought as to whether they ‘top up’ during this leave.
• The Government commitment is to increase the leave by 2021 to 7 weeks paid parental leave per parent which must be taken with the first 52 weeks of the child’s birth.
The General Scheme of the Bill has been published on the Department of Justice’s website, and is available here.
Application procedures for the new Parent’s Benefit
Our understanding is that Parent’s Benefit will be payable from November where an employee avails of their two weeks Parent’s Leave.
Early indicators are that applying for Parent’s Benefit will differ than existing Maternity and Paternity benefit applications in so far as the Department of Employment Affairs and Social Protection will not require supporting evidence that an employer has certified the leave at the point of application.
As part of the application process, the employee will be required to declare that their employer has provided approval to take the leave. This should assist employers with the overall administration burden of the scheme, especially as an employee may take more than one period of leave from employment.
In order to maintain sufficient controls within the scheme design this Department will randomly select a low percentage of employers and write to them advising them of the details of their employee’s application. The employer will then only have to contact the Department where the Parent’s Leave has not been approved. The percentage of employers that may be contacted will be flexible, depending on outcomes, but it not envisaged that this will exceed 5% of applications.
The employee will be advised at the time of application that we may contact their employer to confirm that the leave is approved.