Employment Case Law – Parental Leave
Each month we review a number of interesting employment law cases and consider their implications for organisations. This month we are focusing on the area of redundancy, including alternatives to redundancy and associated case studies.
The primary piece of legislation to be considered when looking at Parental leave is the Parental Leave Acts, 1998-2013 which set out to provide unpaid leave to natural and adoptive parents of children of a certain age and also to persons acting in loco parent is of same.
Eligibility for parental leave depends on 3 factors. These are:
1. The Employee’s status as a parent
2. The age of the relevant child in respect of whom leave is being taken, and
3. The Employee meeting minimum service requirements.
Parental Status
The Employee must be a natural or adoptive parent, or a person acting in loco parentis to the relevant child. Both parents have a separate entitlement to leave.
Age of the “Relevant Child”
Leave may be availed of in respect of a relevant child:
Minimum Service Requirement
In order to qualify for leave the Employee must have completed 12 months service with the Organisation. However, where the child is about to go over the ages specified and the Employee has completed more than 3 months service but less than 12, he/she will be entitled to avail of 1 working week of leave per completed month of service.
Parental Leave Entitlement
An eligible Employee is entitled to avail of up to 18 working week’s unpaid parental leave in respect of each relevant child. References to a working week are based on the normal working week of the Employee.
Transfer of Leave Between Parents
If both parents are Employees of the Organisation, Employees may request that a portion of the leave (not more than 14 weeks) be transferred to the other parent. Approval of such a transfer of leave will be at the discretion of the Organisation.
Patterns of Leave Permitted
An Employer is obliged to permit Employees to avail of parental leave applied for continuous periods of 6 weeks or greater at a time, subject to the right to postpone leave. Periods of leave of a lesser duration, e.g. 1 week or 1 day, need only be approved at the discretion of the Organisation. It is advised that consistent decisions are made in relation to such requests for leave; otherwise the Organisation may set a precedent which entitles all Employees to avail of shorter leave periods.
Notice of Parental Leave
An Employee intending to commence parental leave must is required to submit their application to their Employer at least 6 weeks prior to the intended commencement of leave. This notice should contain the intended dates of the leave, the pattern of the leave e.g. hours/days/weeks. The first application in respect of a particular child should be accompanied by a copy of the child’s birth certificate. The application should be signed by the Employee.
Processing and Approving an Application
The Employer is required to respond to an application for leave to either approve it or postpone it at least 4 weeks prior to date which the Employee has indicated as their desired date of commencement of leave. Where leave is to be approved, a confirmation document must be prepared for record keeping purposes. This document should confirm the dates of leave, and details of the leave arrangement. Once the confirmation document is signed by both the Employer and Employee, it may only be amended by agreement of both parties.
Case 1 – Importance of Documentation (Kennedy v Musgrave Supervalu Centra Ltd PL2/2003)
This case relates to a claim that the Employee was entitled to suspend Parental leave in order to go on Sick leave. The Rights Commissioner found in favour of the Employer, which was appealed by the Employee.
In November 2002 the Claimant became ill and availed of sick leave until April 2002. The Claimant told the Tribunal that while she was on sick leave, her parental leave was being deducted. The Claimant was too ill to care for her children at this time and felt aggrieved that she was losing her parental leave.
A supervisor for the Company told the Tribunal that the Claimant had sent an e-mail requesting the 19 days to be converted to sick leave; this meant that Ms. K would still have 19 days of parental leave. The supervisor said that this e-mail was forwarded to the Human Resources Department, who confirmed that there was no provision in the Parental Leave Act 1998 to change parental leave to sick leave.
The Tribunal upheld the decision of the Rights Commissioner and the Employees claim for sick leave payment failed. One member of the Tribunal was not in agreement but the majority decision was upheld.
Interestingly, in the view of the dissenting Tribunal Member the purpose of Parental Leave is to enable men and women workers to take time off work to care for a child and argued that it would seem that if an Employee becomes ill while on parental leave and as a result is unable to care for the child then that parent is unable to avail of parental leave entitlements and should be entitled to benefit from sick leave.
This case highlights the importance of having documentation in place which details how the Organisation would treat sick leave during parental leave. It also highlights the importance of having the appropriate confirmation document signed and on file as further demonstration of the leave request and parental dates that have been agreed between the Employee and Employer.
The primary piece of legislation to be considered when looking at Parental leave is the Parental Leave Acts, 1998-2013 which set out to provide unpaid leave to natural and adoptive parents of children of a certain age and also to persons acting in loco parent is of same.
Eligibility for parental leave depends on 3 factors. These are:
1. The Employee’s status as a parent
2. The age of the relevant child in respect of whom leave is being taken, and
3. The Employee meeting minimum service requirements.
Parental Status
The Employee must be a natural or adoptive parent, or a person acting in loco parentis to the relevant child. Both parents have a separate entitlement to leave.
Age of the “Relevant Child”
Leave may be availed of in respect of a relevant child:
- Aged under 8 years of age, or
- Within two years of an adoption order where the child is adopted between the ages of 6 and 8 years, or
- Aged under 16 years in the case of a child with a disability/ long term illness, or earlier where the child ceases to have a disability/ long term illness.
Minimum Service Requirement
In order to qualify for leave the Employee must have completed 12 months service with the Organisation. However, where the child is about to go over the ages specified and the Employee has completed more than 3 months service but less than 12, he/she will be entitled to avail of 1 working week of leave per completed month of service.
Parental Leave Entitlement
An eligible Employee is entitled to avail of up to 18 working week’s unpaid parental leave in respect of each relevant child. References to a working week are based on the normal working week of the Employee.
Transfer of Leave Between Parents
If both parents are Employees of the Organisation, Employees may request that a portion of the leave (not more than 14 weeks) be transferred to the other parent. Approval of such a transfer of leave will be at the discretion of the Organisation.
Patterns of Leave Permitted
An Employer is obliged to permit Employees to avail of parental leave applied for continuous periods of 6 weeks or greater at a time, subject to the right to postpone leave. Periods of leave of a lesser duration, e.g. 1 week or 1 day, need only be approved at the discretion of the Organisation. It is advised that consistent decisions are made in relation to such requests for leave; otherwise the Organisation may set a precedent which entitles all Employees to avail of shorter leave periods.
Notice of Parental Leave
An Employee intending to commence parental leave must is required to submit their application to their Employer at least 6 weeks prior to the intended commencement of leave. This notice should contain the intended dates of the leave, the pattern of the leave e.g. hours/days/weeks. The first application in respect of a particular child should be accompanied by a copy of the child’s birth certificate. The application should be signed by the Employee.
Processing and Approving an Application
The Employer is required to respond to an application for leave to either approve it or postpone it at least 4 weeks prior to date which the Employee has indicated as their desired date of commencement of leave. Where leave is to be approved, a confirmation document must be prepared for record keeping purposes. This document should confirm the dates of leave, and details of the leave arrangement. Once the confirmation document is signed by both the Employer and Employee, it may only be amended by agreement of both parties.
Case 1 – Importance of Documentation (Kennedy v Musgrave Supervalu Centra Ltd PL2/2003)
This case relates to a claim that the Employee was entitled to suspend Parental leave in order to go on Sick leave. The Rights Commissioner found in favour of the Employer, which was appealed by the Employee.
In November 2002 the Claimant became ill and availed of sick leave until April 2002. The Claimant told the Tribunal that while she was on sick leave, her parental leave was being deducted. The Claimant was too ill to care for her children at this time and felt aggrieved that she was losing her parental leave.
A supervisor for the Company told the Tribunal that the Claimant had sent an e-mail requesting the 19 days to be converted to sick leave; this meant that Ms. K would still have 19 days of parental leave. The supervisor said that this e-mail was forwarded to the Human Resources Department, who confirmed that there was no provision in the Parental Leave Act 1998 to change parental leave to sick leave.
The Tribunal upheld the decision of the Rights Commissioner and the Employees claim for sick leave payment failed. One member of the Tribunal was not in agreement but the majority decision was upheld.
Interestingly, in the view of the dissenting Tribunal Member the purpose of Parental Leave is to enable men and women workers to take time off work to care for a child and argued that it would seem that if an Employee becomes ill while on parental leave and as a result is unable to care for the child then that parent is unable to avail of parental leave entitlements and should be entitled to benefit from sick leave.
This case highlights the importance of having documentation in place which details how the Organisation would treat sick leave during parental leave. It also highlights the importance of having the appropriate confirmation document signed and on file as further demonstration of the leave request and parental dates that have been agreed between the Employee and Employer.
