Maternity leave

01 November 2013

Updated March 2017

Gives introductory guidance on maternity leave entitlements. Covers the legislation, the length of maternity leave, whether the leave is paid or not, the effect on continuity of service and annual leave, notice periods, termination while on maternity leave, the right to return to work, time off for breastfeeding, ante-natal classes and natal care, postponement of maternity leave, sickness while on maternity leave, bonus payments, right to appraisals, and entitlement to maternity leave for fixed term and agency workers.

The Maternity Protection Act 1994 and Maternity Protection (Amendment) Act 2004 provide protection for women on maternity leave.

There is no qualifying time period before an employee can take maternity leave. An employee can be in work for one week or one month or might have become pregnant before they even start working and their entitlement to maternity leave arises once they comply with the notification requirements.

Maternity and additional maternity leave

The minimum period of maternity leave is six weeks. This has to be taken not later than two weeks before the birth and not earlier than four weeks after the birth. This minimum period of maternity leave can be varied in circumstances where the baby either comes earlier than anticipated or there is a late birth.

The maximum statutory entitlement is 26 weeks. In addition, there is an entitlement to additional maternity leave of 16 weeks allowing for a 42 week absence.

Notice periods

Employees are required to notify their employers in writing of their intention to take maternity leave not later than four weeks before the commencement of maternity leave. Employees must also produce a medical or other appropriate certificate confirming the pregnancy and specifying the expected week of confinement (the date that they are due to give birth) at the same time. This is a mandatory requirement under Section 9 of the Maternity Protection Act 1994 as amended by the 2004 Act.

Employees wishing to take additional maternity leave must notify their employer in writing of their intention to do so. Notification can be given at the same time as the application for maternity leave or not later than four weeks before their expected return date.

With the exception of the right to remuneration, all other employment rights are preserved during the maternity and/or additional maternity leave period. Generally, superannuation contributions should continue to be paid during the maternity leave period but need not necessarily be paid during the additional maternity leave period.

No right to pay

Some employers may continue to pay their employees while they are on maternity leave but that is a contractual right only and may be subject to conditions such as a 12 month minimum service period before the leave is taken. During the maternity leave period there may be an entitlement to social welfare or statutory maternity benefit. There is a standardised rate of €230 per week for all qualifying claimants. Since 1 July 2013 maternity benefit has been taxable for all claimants. The Universal Social Charge (USC) will not apply.

Continuity of service and annual leave

Continuity of service and entitlement to annual leave including public holidays are all preserved while on maternity and/or additional maternity leave.

For more information on leave entitlements, see our factsheet on the topic.

Termination during maternity leave

Termination of an individual’s contract of employment while they are absent from work on maternity leave is void. Termination during additional maternity leave, pregnancy related health and safety leave, during a period of ante- or post-natal care or during the period that they are still breastfeeding in accordance with the breastfeeding regulations is also void. Additionally, any notice of termination served during any of these periods is void.

If a notice of termination of employment is given to an employee before that employee has served notice of their intention to take maternity leave, and this notice of termination is due to expire during the employee’s absence from work or during a period of ante- or post-natal care or during the period that they are still breastfeeding, then the notice is extended by this period.

Where an employee has given notice of her intention to take maternity leave and subsequent to that a redundancy situation arises, notice of redundancy should only start to run after the return to work date.

For more information, see our factsheets on dismissal and redundancy.

Right to return to work

Employees have the right to return to work with the same employer for whom they were working prior to the start of their leave. In the case of a change of ownership of an undertaking, employees have a right to work with the new employer in the job they held immediately before the start of their maternity leave under terms and conditions not less favourable to those which would have been applicable to the employee had they not been absent from work.

For more information about transfer of undertakings (TUPE), see our factsheet on the topic.

Where it is not reasonably practicable for the employer or its successor to permit the employee to return to work in the same position and under the same terms and conditions of employment, the employee is entitled to be offered suitable alternative work by the employer under a new contract of employment, the terms of which are not less favourable to the employee than those of her previous contract.

Entitlement to return to work or to be offered suitable alternative work is subject to an employee, not later than four weeks before the date on which she expects to return to work, notifying her employer in writing of her intention to return to work and the date on which she expects to return.

In Cahill v Focus Suites Ireland (UD723/2013), the employee was told upon her return from unpaid maternity leave that, due to financial difficulties, her role was no longer available. Her employer did say alternative employment would be offered, but they did not give details and failed to tell her that the company was planning to go into liquidation. The EAT was highly critical of the lack of consultation and honesty as well as the fact that the company did not actually commence liquidation until several months after her return. She was awarded €26,992.84.

In Olga Barabola v Tulane Business Management Limited t/a Ballsbridge Hotel (MPD163), the employee worked with the company as a night auditor for a number of years. Due to a backlog of accounting work, she was given a temporary role as an accounts assistant. At this point, she went on maternity leave. She then sought to return to this accounts assistant role permanently. She was offered the role of 'senior receptionist' instead, which was substantively the same job as night auditor. The Labour Court concluded that there had been no breach of the Maternity Protection Acts because her role was the same, but for the title, and she was not returning to adverse work conditions.

The 2004 Act provides that a breastfeeding employee is entitled to take one hour off from work each working day to breastfeed her child. Where there are no breastfeeding facilities within the place of employment, then a breastfeeding employee is entitled to have her working hours reduced by one hour each working day. This entitlement is likely to have minimal practical effect on employers. A breastfeeding employee is defined as an employee who gave birth not more than 26 weeks earlier.

An employee is entitled to paid time off to attend one set of ante-natal classes, other than the last three classes before the birth. An expectant father is entitled once only to paid time off to attend the last two ante-natal classes before the birth. This is subject to the employee giving their employer at least two weeks notice.

In A Paramedic v A Healthcare Provider (ADJ-00000314), the employee worked as a paramedic for the employer, which required her to travel over four hours a day to commute for work. When her son was born premature, she placed a formal request to allow for her to work closer to home to allow her to breastfeed her child. When this request was not responded to, she lodged a grievance which was not looked at for seven months. The union representative argued that the issue was time-sensitive and this was an unjustifiable delay. The Adjudication Officer held that the delay was inexcusable, but that she was not entitled to skip the queue in terms of getting a transfer. In particular, he noted that workers cannot be subject to discrimination, either positive or negative, by virtue of their marital/family status. He awarded €2,500 compensation for the delay in addressing the grievance.

Maternity and additional maternity leave may be postponed, with the employer’s consent, in the event of the hospitalisation of the baby. The maximum period of postponement is six months. The maternity leave period can only be postponed if the employee has taken at least 14 weeks maternity leave at the time of the request for postponement and not less than four weeks of those are after the end of the week of confinement. Where an employer agrees to the postponement, the employee will be entitled to take the postponed leave in one continuous block known as ‘resumed’ leave. This ‘resumed’ leave must begin not later than seven days after the discharge of the baby from hospital.

If, at any time during the last four weeks of maternity leave or during the additional maternity leave, an employee is sick she can, with her employer’s consent, cancel her additional maternity leave. Any absence thereafter is treated as absence due to sickness and the employee is to be treated accordingly. Once the additional maternity leave has been terminated, the employee is not entitled to take the remainder of the leave at a later date.

Where a bonus payment is made for work performed in the course of the year then it should be pro-rated. Where the bonus payment is subject to the sole condition that the worker must be in active employment when it is awarded, then it need not be paid during the period of absence. In order to ascertain entitlement, employers need to consider the precise nature of the bonus scheme, as well as past practice, before taking a decision to pay or withhold a bonus payment.

The European Court has looked at what constitutes a period of absence and ruled out periods where an employee is prohibited by law from working. Under the maternity legislation an employee is not allowed by law to work for six weeks (two weeks pre- and four weeks post-confinement). The Irish Courts have yet to rule on this point but, when they do, they are likely to be in line with the European Court.

In A Worker v An Insurance Company (DEC-E2015-022), the employee had worked for the company as a HR generalist for a number of years before going on two periods of maternity leave. During these periods, she was given performance reviews that marked her at 'meets expectations' which reduced her bonus. She instituted complaints including discrimination relating to promotion opportunities and discrimination adversely impacting on her ability to earn a bonus. The Equality Officer found that she had established a prima facie case, which was not sufficiently rebutted by the company. She was awarded €70,000 in compensation. The Tribunal found that she had been disadvantaged whilst on maternity leave in respect of her performance rating and that she suffered financially as her annual bonus was reduced in line with her performance rating.

Denying an employee a performance appraisal necessary to qualify for promotion because of her absence on maternity leave constitutes direct sex discrimination.

Fixed term workers

Fixed term workers are covered by the maternity legislation. However, where a contract is due to expire during the maternity leave period, protection under the Acts also expires on that date.

For more information on the rights of fixed term workers, see our factsheet on the topic.

Agency workers

The maternity legislation also applies to agency workers. In such a case, the person who pays the agency worker's wages, generally the employment agency, is deemed to be the employer.

For more information on the rights of agency workers, see our factsheet on the topic.

This factsheet was written by A&L Goodbody, Solicitors, IFSC, North Wall Quay, Dublin 1.

© A&L Goodbody Solicitors. The material is not intended to provide, and does not constitute, legal or any other advice on any particular matter, and is provided for general information purposes only.