The Parental Leave (Amendment) Act 2019

The Parental Leave (Amendment) Act 2019 is due to come into effect from 1 September 2019.

This legislation extends the period of unpaid parental leave, increases the age of the child, and provides for parents who have already taken parental leave, to receive the additional eight weeks of leave. The main points of the Act are that:

  • From 1 September 2019, a parent will be able to take up to 22 working weeks of unpaid parental leave, an extra four weeks on top of the current 18 weeks
  • From 1 September 2020, a parent will be able to take up to 26 working weeks of unpaid parental leave, a further four week extension
  • The age of a qualifying child increases from 8 years to reaching the age of 12 years
  • Any parent who has already availed of their current entitlement of 18 weeks will be entitled to avail of a further eight weeks of parental leave.

From November 2019, the government proposes to make paid parental leave available to new parents in employment or self-employment, on top of existing maternity, paternity, unpaid parental leave and adoptive leave entitlements. The Minister for Justice and Equality, Charlie Flanagan published the general scheme of the proposed legislation to outline the arrangements to provide the benefit from November 2019 in the Parental Leave and Benefit Bill 2019.

Summary of Parental Leave and Benefit Bill 2019 

The Parental Leave and Benefit Bill 2019 is the most recent effort by the government to deliver on its commitment to increase paid parental leave in the first year of a child’s life. The Government estimates that up to 60,000 parents could benefit from the scheme in a full year.

Eligibility

Each parent of a child born on or after 1 November 2019 will be entitled to take an individual period of paid parental leave once they have been with their employer for a year. An employee on parental leave will be treated as if they were still in employment and their absence will not affect their rights or entitlements. The leave cannot be transferred between parents and provision is made for adoption and same-sex couples.

Duration 

The proposed leave will initially be for two weeks per parent and must be taken within 52 weeks of the birth of the child, or in the case of adoption, the date of placement of the child. The leave must be taken in periods of not less than one week in duration. The government proposes to increase paid parental leave to seven weeks for each parent by 2021.

Application

Written notification must be provided by the employee to the employer to take parental leave. This notification should be given to the employer as soon as is reasonably practicable, but not later than four weeks before the leave commences. There is no discretion on the timing of the leave for the employer. A notification to take parental leave may be withdrawn in writing by the employee and a four week notification period would again apply.  However where an employee postpones the leave, they simply provide the alternative dates, with no specific notice requirement.

A lot of complexity is proposed in the legislation as it outlines separate rules to manage:

  • Commencement of parental leave in the case of early confinement
  • Postponement of parental leave 
  • Postponement of parental leave in event of sickness of relevant parent
  • Postponement of parental leave in event of hospitalisation of child
  • Entitlement of employed surviving parent to parental leave on death of their partner
  • Entitlement to leave on the death of a child
  • Entitlement to parental leave beyond 52 weeks

While these are necessary scenarios to deal with, the differing rules and lack of a requirement to engage with the employer will make this leave very difficult to plan for and manage in the workplace.

Payment

The Department of Employment Affairs and Social Protection will make the accompanying Parental Benefit payment of €245 per week. The legislation will lay out the rules of entitlement with regard to Parental Benefit payments, a benefit that will not be transferable in any part between parents.

Increased potential for confusion in area of family-friendly benefits

While CIPD Ireland welcomes initiatives that provide for increased flexibility in the workplace there is potential for confusion as this is another type of leave that will be allowed for, with the system allowing for paid and unpaid maternity and adoptive leaves, unpaid parental leave, paid paternity leave and now paid parental leave. With each leave type having separate application procedures and rules governing approval, it will take a lot of effort to ensure employers fully understand their obligations, and employees understand their rights.  

This complexity and confusion will also mitigate against real flexibility for parents, as a real benefit of the current unpaid parental leave is the capacity for many parents to opt for a shorter working week, and spread the financial cost over a longer period. The complexity an variation will make it more difficult for managers and HR to be able to support parents at work.

What can employers do to prepare for the new scheme? 

Although parental benefit will be paid by the Department of Employment Affairs and Social Protection, the Bill will put pressure on employers to top-up pay, and will be particularly burdensome for small and medium enterprises. This is likely to be heightened as the period of leave increases up to seven weeks by 2021. Companies will need to consider this in light of their current practice of topping-up maternity, adoptive or paternity leave, to ensure there is no gender bias. 

Procedures should be reviewed to ensure that an appropriate system is in place to assess the implications and manage the workforce planning and the administrative impact of managing this leave. 

Although the Bill is at an early stage, it is a stated Government priority with the Department wanting to ensure that the new paid parental leave scheme will be operational from November 2019. CIPD Ireland is encouraging employers to understand the proposals, express their concerns and start preparing now for the introduction of this new leave

Common Areas of Complaints Employees Claim

The most common complaints that employees take claims for are:

unfair dismissal

  • Unfair dismissal (including constructive dismissal)
  • Redundancy claims-not being paid for redundancy or being unfairly selected for redundancy
  • No statement of terms of employment/no contract
  • Non-payment of wages-this includes unlawful deductions from your wages and late or non-payment
  • Breaches of working time legislation and not giving the proper, or any, rest breaks, or the correct annual leave/holidays
  • Not giving the proper notice when terminating the employment
  • Being bullied and/or harassed in the workplace-either by the employer or fellow employees
  • Being sexually harassed at work- employees are entitled to protection not just from the employer and employees but customers/clients too
  • Changes to the employment contract without employees consent
  • Reductions in wages or hours of work without employees consent
  • Breaches of the data protection rights in relation to employees personal data
  • Refusal of statutory leave entitlement
  • Failure to give a contract of indefinite duration when an employee is entitled to one after 2 or more fixed term contracts
  • Failure to provide a safe place or method of work in breach of health and safety obligations
  • Ignoring an employee’s rights and entitlements under TUPE (transfer of undertakings) legislation
  • Unfair disciplinary procedures and warnings on individual’s employment record
  • Treating part-time employees less favourably than full time employees
  • Asking an employee to work longer hours than is permitted
  • Not giving employee’s entitlements to maternity and/or parental leave and/or force majeure leave and/or adoptive leave
  • Failing to deal properly and fairly when an employee suffers a personal injury at work
  • Treating an employee unfairly when they are sick

If you are worried about successful claims against you or if you want to ensure that you have your house in order, and have a HR Audit carried out, please call Mary on 086 8225448 or email mryan@righthandhr.ieSituations can easily develop into costly messes rather than being nipped in the bud.

The Benefits of Workplace Mediation

mediation
It is advised that Mediation is voluntary – and anything else is undermining the values of mediation and somehow seen as almost disrespectful of people’s rights. I disagree. And I’ll explain why.
Reason 1: Workplace mediation is different from other types of mediation
Workplace mediation ‘came over’ from community and family mediation, where the roles and responsibilities of parties to a dispute are very unlike. I believe that what is right for two families living side by side, may not be right for two colleagues working, under a contract, for the same organisation.
The employer expects employees to be grown up, responsible and accountable – and these values are clear and for part of the psychological contract. So why do employers support irresponsibility, and a lack of accountability, when it comes to people in conflict? I simply do not understand this. Are your values serious, or are they window-dressing? Asking a person with a conflict to meet a skilled, trained mediator, for a private conversation, is surely not unreasonable?
Reason 2: We need to help, not to collude with, the person with the conflict
I know absolutely the horror of being asked to ‘sit down and have an honest conversation’ with someone I currently do not respect or am angry with. And it is this state, of being in a conflict, that puts us in exactly the frame of mind to avoid talking. When we are in a conflict, we do not make wise judgements for ourselves, and we often choose the path with the poorer outcome – litigation or formal action. In a real sense, when we are in a conflict we are our own worst enemy. To not make mediation mandatory is to collude with someone who has an illness which is treatable, but whose very symptoms include a passionate rejection of the cure they are being advised to take. Expecting someone to talk to a mediator simply gives that person a chance to be listened to, and empathised with; and very probably they will then feel able to take the next step and meet the other person in a joint mediation.
Reason 3: The numbers makes sense
Let us say there are 1000 disputing parties at work in UK plc who are, variously, off with stress, underperforming, taking up HR and managerial time, making poor work decisions – all because they are avoiding the ‘enemy’ with whom they need to consult. Colleagues are fed up with the situation but feel powerless to intervene and the rumour mill is distracting everyone from getting on with what they are paid to do. HR is bracing itself for a formal complaint, or simply wishing one would arrive on their desks so at least they can get moving on sorting this out.
Let us say (rather optimistically) that HR manage to persuade 10 per cent of these people to try mediation “voluntarily”. Of these, 9 mediations end in agreement; a 90% ‘success’ rate. UK plc now has ninety people who as a result of mediation feel able to go back to fully productive lives at work, and 10 people who still have a conflict despite a mediation, but are perhaps clearer about what they need to do to resolve the matter.
But there are still 900 people still in dispute and under performing. What is to be done with them? Very little, if they don’t make a formal complaint that can bring an end to the matter, albeit a win-lose end.
So UK plc does the right thing and introduces mandatory mediation – by which I mean that it makes clear employees are expected and required to attempt to resolve their conflicts through mediation in the first instance. It takes away none of their rights, they are not obliged to reach agreement, they are not obliged to even actively engage. What they are obliged to do is initially meet a mediator privately and take part in a joint meeting which they may or may not wish to engage in fully, it doesn’t matter.
And let’s say that this approach reduces “success” levels by a whopping 50 per cent. (I don’t believe it would be this low, as resistance to mediation is simply a “position”, and like all positions can be explored and ‘overcome’ and a new way of meeting that person’s needs arrived at.)
So 1000 disputing parties take part in mediation, and only 45 per cent reach agreement. This represents 450 people who can go back to productive working, innumerable teams who breath a collective sigh of relief that it’s all sorted out, HR staff who can move on to other matters – the collateral from a successful mediation is extensive. The number of people who now have a dispute in UK plc has gone down by over 60% from 900 to 550. Surely this is a positive outcome?

Source – CMP Resolution Blog by Lesley Allport and Katherine Graham.