Advices on your rights regarding Annual Leave, Maternity Leave, Holidays and other legislative entitlements

Part III of the Organisation of Working Time Act 1997 deals with annual leave and public holidays. All employees are entitled to paid annual leave as follows:

4 working weeks where at least 1365 hours have been worked in the leave year or
one third of a working week where the employee works at least 117 hours in a calendar month or
8% of the hours worked in a leave year (subject to a maximum of four weeks).

Periods of sick leave are not counted as hours worked but maternity leave and parental leave are. Holiday pay must be paid in advance. If the pay is static it is the normal rate for the working hours in the week immediately preceding the holiday. If it varies it is the average for the normal working hours in the 13 weeks before the holiday.

The employer can determine the time of annual leave but must give one month’s notice and have regard for the employee’s family circumstances. Annual leave must be taken within the leave year or by agreement within six months of its end. Pay cannot be given in lieu. If an employee falls ill on annual leave, it shall not be counted as annual leave.

Public Holidays: All employees are entitled to public holidays but may at the option of the employer be given either a paid day off on the day, a paid day off within a month, an extra day’s annual leave or an additional day’s pay. The employer can be requested not more than 21 days before the public holiday to nominate the option he proposes to take.

Current public holidays are:

(a) 1 January (New Year’s Day)

(b) St Patrick’s Day

(d) the first Monday in May

(e) the first Monday in June

(f) the first Monday in August

(g) the last Monday in October

(h) Christmas Day

(i) St Stephen’s Day

Absence: No entitlement to public holidays where employees are absent from work for 52 weeks due to an occupational illness; 26 weeks in the case of other illness or injury; 13 weeks for authorised absence. No entitlement to public holidays during a strike.

Public Holiday Work: An employee who normally works on a public holiday is entitled to an additional day’s pay. Otherwise they are entitled to 1/5 of a week’s pay. The calculation of pay for a public holiday is the same as that for annual leave and is set out under the Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997 (S.I. No.475 of 1997) Where an employee leaves employment on the week ending on the day before a public holiday then they will be entitled to pay for that holiday provided they have worked for the employer during the preceding four weeks.

Procedures and Enforcement: A claim may be brought, in writing, to a Rights Commissioner within 6 months of the date of any contravention (twelve months where “reasonable cause” is shown for the failure to bring a claim within 6 months).

A decision of a Rights Commissioner shall do one or more of the following:

Declare that the complaint was or, as the case may be, was not well founded;
Require the employer to comply with the relevant provision;
Require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee’s employment. A party concerned may appeal to the Labour Court from a decision of a Rights Commissioner by giving notice to the Labour Court within 6 weeks of the date on which the decision was communicated to the party.

We can also advise in relation to the Maternity Protection (Amendment) Act 2004 introduced a number of significant changes to the Maternity Protection Act 1994 with the result of improving maternity protection for employees. The legislation implemented the recommendations made by the Working Group on the Review and Improvement of the Maternity Protection Legislation. Further additional maternity benefits were given effect by the Maternity Protection Act, 1994 (Extension of Periods of Leave) Order 2006. The main provisions of the 1994 and 2004 Acts, as amended by the 2006 Order are as follows:

– provision, subject to the employer’s agreement, for the termination of (unpaid) additional maternity leave in the event of sickness;

– provision, subject to the employer’s agreement, for the postponement of maternity leave/additional maternity leave in the event of the hospitalisation of the child;

– provision for expectant mothers to attend one set of ante-natal classes without loss of pay;

– provision of a once off right to fathers to paid time off to attend the last 2 ante-natal classes;

– provision for breastfeeding mothers who have given birth within the previous 4 months with an entitlement, without loss of pay, to either breastfeeding breaks, where breastfeeding facilities are provided by the employer, or a reduction of working hours and;

– provision that an employee’s absence from work on additional maternity leave will count for all employment rights associated with the employment (except remuneration and superannuation benefits), such as seniority and annual leave.

_Rights under Maternity Protection Acts 1994 and 2004 apply to all pregnant employees, all employees who have given birth in the previous 14 weeks, and all employees who are breastfeeding up to 26 weeks after the birth, provided they have notified their employer oftheir condition. No minimum length of service is required.

Qualifying employees are entitled to:

26 consecutive weeks maternity leave for women who commenced maternity leave on or after 1 March 2007, to include at least 2 weeks before the expected date of birth and at least 4 weeks after the birth
16 weeks additional maternity leave to be taken immediately following the 26 week period (optional)
Social welfare payment, if applicable, during the 26 weeks maternity leave.

Employees must give employers at least 4 weeks written notice before:

Taking maternity leave
Taking additional maternity leave
Returning to work

Other categories of protective leave under the Maternity Protection Acts 1994 and 2004:

Natal Care Leave -Employees are entitled to paid time off to receive antenatal or post-natal care. 2 weeks notice of appointments should be given to the employer where possible
Father’s Leave – If a mother dies during maternity or additional maternity leave, the father may avail of the outstanding balance of the leave.
Health and Safety Leave – Employers are required to identify any risk to which employees covered by the Maternity Protection Acts might be exposed. If a risk is established, the employer should remove it or transfer the employee to suitable alternative work. If no such work is available, the woman must be granted health and safety leave. Employers are obliged to pay employees for the first 3 weeks of health and safety leave, after which social welfare benefits may apply. Health and Safety provisions may also apply to employees who normally work at night (subject to medical certification). All employment rights other than the right to remuneration are either preserved or suspended during protective leave.

Procedures and Enforcement: Disputes arising under the Act (entitlement to leave, time off for antenatal or post-natal care etc but excluding a dismissal claim) may be referred to a Rights Commissioner (6-month time limit, 12 months in “exceptional circumstances”) with a right to appeal to the Employment Appeals Tribunal within 4 weeks. A claim relating to dismissal must be brought under the Unfair Dismissal Acts 1977-2007. The one year continuous service requirement under the Unfair Dismissals Acts 1977-2007 does not apply where the employee is dismissed for pregnancy, giving birth or breastfeeding or any matters connected therewith.

Advices on your rights regarding Annual Leave, Maternity Leave, Holidays and other legislative entitlements

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