Posted on: Mar 15, 2013

Question: We have an employee who is taking maternity leave and her final date of employment is within two weeks of the first of the Easter statutory holidays. The employee has either taken accrued holidays or will be paid out her entitlement when she leaves.  Are we obligated to pay her any of the Easter statutory holidays, given she is leaving our employment very close to the Easter break?

Answer: Because the employee’s employment is not terminated when she goes on maternity leave, the employee’s annual leave cannot be “paid out” when she “leaves”. Annual leave cannot generally be cashed up except in accordance with the Holidays Act 2003 (the Act).

The Act makes it clear that annual leave cannot generally be paid out. The Act does provide that the fourth week of annual leave can be cashed up. In that situation the employee continues to work and essentially is paid double time. That is not the situation here because the employee is actually taking the leave.

The Act makes it clear that employees have an entitlement to a minimum of four weeks’ annual holidays. This entitlement to payment and time off work is absolute, with the exception of the employee’s right to request that up to one week of holidays be paid out. An employee cannot lose his or her entitlement to annual holidays (section 16(4)).

Section 6 of the Act renders any agreement that reduces an employee’s entitlements under the Act of no effect. An employer who agrees to cash up more than one week of annual holidays may subsequently face a claim that the annual holiday entitlement was never extinguished.

The answer depends on type of leave taken

In light of the above the answer to the question depends on whether the employee is immediately going on to maternity leave or whether she is initially going on to paid annual leave and using that leave up before she takes maternity leave.

If the employee begins her leave with annual leave and that annual leave continues over the holiday period the employee is entitled to be paid for the Easter holidays if she would normally have worked on the holiday days. Section 40(1) of the Act provides that if a public holiday occurs during an employee’s annual holidays, the day must be treated as a public holiday and must not be deducted from the employee’s annual holiday entitlement (section 40(1)).  The day must be calculated and paid as if it were a normal public holiday if the day would otherwise have been a working day for the employee.

If the employee begins maternity leave at once then she is not entitled to be paid for the public holidays because those days would not be an ordinary working day for her.

Otherwise working day

One of the prerequisites to an employee receiving payment for a day off work on a public holiday is that the day must otherwise have been a working day for the individual. Section 12 of the Act provides guidance on how to determine what would otherwise have been a working day. Subsection (3) lists factors that are to be taken into account in assessing whether a day would otherwise be a working day for the employee. The factors are:

• the terms of the employment agreement
• the employee’s work patterns
• whether the employee works only when work is available
• the employer’s rosters or other similar systems
• the reasonable expectations of the parties that the employee would work on the day concerned, and
• whether, if the day had not been a public holiday, alternative holiday, or day of sick or bereavement leave, the employee would have worked on the day in question.

Ultimately, the issue of whether a day would otherwise have been a working day for this employee will rest on the particular facts of the situation.

Parental leave – notice for adoption

Question: A couple is going to adopt a child very soon and the father has requested 10 days’ parental leave off work but has not yet given formal written notice to the employer (although he may still be within the 14-day notice threshold). Is insufficient notice a valid reason for the employer to deny his request?

Answer: Provided the employee is eligible for parental leave and meets the notice requirements under the Parental Leave and Employment Protection Act 1987 (the Act) the employee has a statutory entitlement to parental leave (section 17) and the employer cannot refuse his request for leave.

The Act provides that an employer must not unreasonably refuse to allow an employee to exercise any rights or benefits in respect of parental leave. The Act also provides that, with regard to an employee’s failure to comply with the notice requirements, the Employment Court or Employment Relations Authority must grant relief to the employee if it is satisfied that the failure was in good faith and that the extent of compliance or non-compliance was reasonable in all the circumstances of the case.

In the case of an adoption, the Court or Authority would expect the employer to act in good faith and in a constructive manner (Employment Relations Act 2000, section 4) and it would be hard for an employer in this situation to show an employee was acting unreasonably and was not acting in good faith. If the employer refused leave, the employer would be hard pressed to show it was acting reasonably. If the employer refused to grant leave for lack of notice, it is highly likely that the Court or Authority would order that leave be granted.

Eligibility for partner’s/paternity leave

Partner’s/paternity leave is a form of parental leave. Section 17 of the Act provides it is available to the partner of a pregnant woman if he or she intends to assume care of the child, or to the other adoptive parent who assumes the care of a child under five with a view to adoption. The partner or other adoptive parent must have been in employment with the same employer for at least an average of 10 hours per week for the 12 months immediately preceding the expected date of delivery or assumption of care, or for the immediately preceding six months.

Requirements concerning adoption

The Act provides, when a child is to be adopted, the notice requirements are (section 33):

• if the adoption has been approved by a social worker, notice must be given within 14 days of receiving notice from the social worker and must be accompanied by a letter from the social worker
• if the adoption results from a court order, notice must be given within 14 days of the making of the order and be accompanied by a certified copy of it, or
• where the child is otherwise lawfully in the employee’s home under s 6(4) of the Adoption Act 1955, notice must :
  • (i) be given within 14 days after the date on which the employee makes a statutory declaration to the effect that the employee has assumed the care of the child with a view to adoption by the employee, or by the employee and the employee’s spouse or partner jointly, and
  • (ii) be accompanied by a copy of the declaration.

Failure to notify

Section 68 of the Act provides that an employer must not unreasonably refuse to allow an employee to exercise any rights or benefits in respect of parental leave or a parental leave payment because of an irregularity. “Irregularity” is defined in section 68(2) as omitting to do something required under the Act or an employment agreement, or doing such a thing too early or too late, or doing anything in an irregular form. An employee or an employer can apply to the Authority or to the Employment Court for relief in respect of such an irregularity.

With regard to an employee’s failure to comply with the notice requirements, the Court or Authority must grant relief to the employee if it is satisfied that the failure was in good faith and that the extent of compliance or non-compliance was reasonable in all the circumstances of the case (section 68(4)). Where other irregularities are concerned, the Court or Authority has a discretion to grant relief if it thinks this is reasonable, having regard to the nature of the irregularity, the good faith and otherwise of the parties, and any other matter it thinks proper (section 68(5)). The Court and Authority are given a wide discretion as to the form of relief that may be granted: section 68(6).

Duration of leave

An employee who, at the expected date of delivery of the child, has been employed for an average of 10 hours per week for 12 months is entitled to two weeks of partner’s/paternity leave (section 19(a)). An employee who has been employed for an average of 10 hours per week for between six and 12 months at the expected date of delivery of the child is entitled to one week of partner’s/paternity leave (section 19(b)). These periods of partner’s/paternity leave cannot generally be extended (section 45(4)(b)(i)).

Disclaimer

This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.