Paternity Leave on the way

The Paternity Leave and Benefit Bill 2016 (the Bill)  has been passed by the Dail. The Bill will commence on 1 September next. It will provide long awaited statutory paternity leave and benefit for fathers. It will also bring Ireland in line with other EU countries. Up until now we have been one of the few member states without some form of leave for fathers. The leave is the first in what is a suite of family friendly initiatives designed to encourage and promote a more equitable division of parental responsibilities in the workplace.

Announcing the introduction of paternity leave, the government also referred to the possibility of a further 2 weeks' shared parental leave to be introduced in the next Budget. Whether this materialises remains to be seen. Nonetheless, the introduction of paternity leave and benefit is a very welcome development. Whilst the government has taken the crucial first step, employers now need to ensure that they encourage and facilitate the take up of the leave in the workplace.

The Bill mirrors to a large degree the format of the maternity, adoptive and parental leave legislation. Below is a FAQ on the key provisions of the Bill and tips for employers on what to do in preparation for its commencement.

What are the entitlements?

A relevant parent will be entitled to two continuous weeks' paid leave in respect of births from September 2016. Payment will be at the rate of €230 per week, subject to a person having the appropriate PRSI contributions. This is the same as the current rate of maternity benefit. Similar to maternity leave, employers can top up paternity benefit if they wish. Where employers make a top up to female employees, from an equality perspective they will need to consider a similar approach to paternity benefit for male employees.

Who can apply?

The leave is open to all fathers, including self-employed, same sex couples and those adopting. The definition of relevant parent is key to the Bill. A "relevant parent" is defined as the father of the child, the spouse, civil partner or cohabitant of the mother. In most family circumstances it will be the father. The leave applies to one person only, except in the case of adoption, whereby a biological father may have already taken paternity leave so it allows the subsequent adopting father to also take leave.

When can the leave be taken?

The leave can be taken at any time in the 26 weeks' following the birth of the child (or placement in the case of adoption).  4 weeks' notice is required before the leave may be taken however there is provision for shorter notice.  The Bill allows for the postponement of leave in certain circumstances, such as the sickness of a relevant parent and hospitalisation of the child.

What happens if the leave isn’t used for looking after a child?

The leave is to be used for the sole purpose of looking after the child. If an employer finds out that a parent is abusing the leave then the employer can terminate it (by giving notice in writing).

What happens if someone is penalised for taking the leave?

The Bill contains protections from penalisation for taking paternity leave and preservation of employment rights while on paternity leave. Similar to the maternity legislation, the Bill contains provisions such as the voidance of termination/notice of termination of a relevant parent while he/she is on paternity leave or the suspension of an employee while on leave.

What happens if the baby dies or is stillborn?

In such unfortunate circumstances, the entitlement to paternity leave continues and if one parent dies then the other parent inherits whatever paternity leave hasn’t been taken.

What if someone wants to make a complaint?

Any dispute regarding paternity leave should be referred to an Adjudication Officer of the Workplace Relations Commission (WRC).

Tips for employers

• In preparation for the new Act, employers should put in place a paternity policy setting out the internal procedures which employees must comply with in order to take the leave. This should cover who can the leave, when it can be taken and what is needed to comply with the legislation.
• If an employer is going to top up the state payment any conditions attached to such payment should be in similar terms to an employer's maternity leave policy – i.e. is there a minimum service requirement, claw back provisions if they leave shortly after taking leave etc. This is to safeguard against any allegation of discrimination in how male employees taking the leave are treated.

For more information please contact your usual contact on the Employment Team in A&L Goodbody Solicitors.