Fianna Fáil proposed the Shared Maternity Leave and Benefit Bill (the “Bill”) on Friday 13 July 2018. The Bill seeks to enable parents to share ordinary maternity leave which currently comprises 26 weeks. The Bill is currently at first stage and will enter debate in autumn. Whilst not opposed by any party, it remains to be seen whether the Bill will obtain government support.
Maternity leave is governed by the Maternity Protection Acts 1994-2004 (the “Act”).
The Act entitles a pregnant employee to 26 weeks ordinary maternity leave (“OML”) and an additional period of 16 weeks’ maternity leave. Maternity leave must be taken at least 2 weeks before and at least 4 weeks after the birth of the child.
Fathers are currently only entitled to 2 weeks’ paternity leave and may only take up the mother’s maternity leave entitlement or part thereof if she dies.
Parental leave is additional to maternity leave and paternity leave and currently entitles a parent (or persons acting in loco parentis) of the child to 18 weeks leave per child. It can be taken at any stage until the child reaches the age of 8 years, or 16 years in cases of disability and adoption, to care for the child.
Under the Bill, a pregnant employee may share their entitlement to OML with an employee who is a ‘relevant parent’ of the child.
‘Relevant Parent’ assumes the definition provided under the Paternity Leave and Benefit Act 2016 and is a person other than the mother of the child. It includes the father of the child, the spouse, civil partner or cohabitant of the mother of the child. Where the child is adopted then the relevant parent is the spouse selected by the adopting couple.
The opportunity to share maternity leave includes the ability to share the associated state maternity benefit. Where maternity leave is shared, the maternity benefit would be apportioned between the parents of the child in proportion to the period of maternity leave taken by each parent. This is referred to as “Shared Leave Benefit” in the Bill and is additional to the paternity leave benefit.
The Bill also clarifies that shared maternity leave is supplemental to the paternity leave of 2 weeks. Notably, the Bill is not applicable to the additional unpaid leave of 16 weeks.
The Bill sets out the requirements for sharing maternity leave including the obligation on the relevant parent to notify the employer in writing of the intention to share the OML entitlement. The Bill has not prescribed the notice period required.
Premise of the Bill
In proposing the Bill, Fiona O’Loughlin for Fianna Fáil stated that the Bill “will facilitate greater equality insofar as it allows both parents to share rearing responsibilities”.
Accordingly, the Bill, if enacted, may be a positive step towards creating a more modern workplace, enabling parents to have greater flexibility in the care of their children. By affording parents the opportunity to share maternity leave, parents are in an optimal position for determining the best arrangements for their children. Other factors come into play including financial arrangements. Depending on the circumstances, it may be economically viable for a mother to share part of her maternity leave.
Fianna Fáil also highlighted that the Bill would not give rise to any additional costs to the Exchequer given that state maternity benefit is already paid to mothers.
Position in the UK
The UK government introduced a similar concept under its Shared Parental Leave scheme in April 2015. This enables parents to share the period of parental leave. The parental benefit is also apportioned between the parents in accordance with the length of parental leave taken. A mother and partner have an entitlement to 39 weeks shared parental pay. However, as a mother is statutorily required to take two weeks maternity leave, shared parental pay is available for 37 weeks.
To avail of the scheme, a mother must either return to work or curtail her entitlement to maternity leave. A mother and partner may elect to take shared parental leave separately or at the same time. It must be taken in the first year of the birth of the child.
Despite the attractions of sharing parental leave, in practice it may not cause significant change. The UK Government issued a report in 2016 that predicted only 2-8% of fathers would avail of shared parental leave.
An issue which may arise in the potential implementation of the Bill, is possible allegations of discrimination if enhanced maternity pay is only provided to mothers. This has arisen in the context of paternity leave (see our article here). In An Area Manager v A Transport Company ADJ-0000577, the adjudication officer found that an employer could pay enhanced maternity pay but not enhanced paternity pay given the special protection afforded to women under EU and Irish legislation to ensure health and wellbeing during pregnancy and maternity leave.
In Ali v Capita Customer Management Limited EAT/0161/17/BA, the UK EAT determined that a policy providing for enhanced maternity pay for the first 14 weeks but not shared parental pay did not directly discriminate against men. This is due to the EU Pregnant Workers Directive (92/85/EEC) which provides that a mother must take 14 weeks maternity leave to ensure the protection of her health and wellbeing. While the UK EAT did not consider the possibility of offering enhanced maternity pay beyond the 14 weeks, it could be argued that the objective of maternity leave at that stage is no longer the health and wellbeing of the mother but rather the provision of care to the child.
The Bill seeks to adopt a similar approach to that taken in the UK. Whilst it is not yet clear whether the Bill will obtain the support of the Irish Government, it is likely to be welcomed by parents as a move towards a more progressive workplace.
However, given the slow uptake of the UK scheme, it remains to be seen whether the Bill, if enacted, would generate any significant change in the Irish workplace.