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21 April 2021
On 27 March 2021 the changes to parent's and adoptive leave announced in the Budget 2021 were signed into law and entered into force on 1 April 2021.
The Family Leave and Miscellaneous Provisions Act 2021 provides for:
Minister for Children, Equality, Disability, Integration and Youth Roderic O'Gorman welcomed the new law. Recognising that COVID-19 had had a serious impact on working parents, especially those who had children during the pandemic, O'Gorman said that:
an important facet of parent's leave is to encourage the sharing of childcare and I hope that this additional period of leave will support and encourage fathers in taking a more prominent role in the care of their young child.
Parent's leave and benefit was introduced in 2019 in respect of babies born or children adopted after 1 November 2019. Two weeks' paid leave had to be used within 12 months of the child's birth or adoptive placement. Parent's leave is non-transferrable between parents to ensure that both parents are encouraged and supported in taking time out from work to spend time with their child. Parent's leave and benefit is also available to self-employed persons.
Adoptive leave was introduced by the Adoption Act 1995 (with amendments in 2005) and was available to a female employee or a sole male employee adopting a child. Adopting fathers were entitled to adoptive leave where the adopting mother had died. Married male same-sex adopters could not benefit from the leave.
The new law increases the amount of parent's leave to a total of five weeks for each parent. This leave can be taken all together as one block or as separate weeks. Each parent will be able to take this entitlement up to the child's second birthday or within two years of placement following adoption. The increase will apply retrospectively, so any parents who have already taken two weeks' parent's leave will be entitled to a further three weeks' leave if their child was born or adopted after 1 November 2019 and is younger than two (or has been adopted for longer than two years). A corresponding state benefit (parent's benefit) can be claimed by the employee directly from the Department of Social Protection for a period of parent's leave. Some employers choose to top up the parent's benefit as part of their family leave benefits, but this is a matter for employers to decide.
This entitlement is entirely separate to employees' right to unpaid parental leave. The similar names of these different types of leave can be confusing for both employers and employees. In contrast to the shorter period of parent's leave which is designed to allow parents to spend time with their child in the child's early development years, parental leave can be taken for each eligible child up to their 12th birthday (16th birthday for a child with a disability). Since 1 September 2020, 26 weeks' parental leave can be taken by an employee for each eligible child.
The changes to how adoptive leave can be taken will be a welcome relief to adoptive parents. Being able to choose which parent may take the leave will provide more flexibility in terms of how adoptive leave is taken. The changes also finally recognise the rights of male same-sex adopters by updating the outdated legislative wording and removing the presumption that an adoptive mother will be the primary caregiver of the adopted child.
Employers should update their family leave policies to reflect the most recent changes in parent's and adoptive leave and also capture the increase to parental leave in September 2020.
The government is keen to implement legislative reforms to enable parents to spend more time with their children. These new rights, coupled with the proposed rights to request remote working and the right to disconnect,(1) are all aimed improving the work-life balance. The EU Work-Life Balance Directive, which must be transposed by the government before August 2022, aims to provide further flexibility for parents and carers in respect of the work-life balance. In light of this, the new legislation contains a review mechanism so that this can be considered further against a budget analysis in 12 months' time. The period of leave will likely be further increased to nine weeks in total gradually over the next few years.
To prepare for the EU Work-Life Balance Directive, employers should start to review their family and carer's leave policies and practices and consider how to deal with requests for both remote and flexible working arrangements from working parents and carers. Engaging with the workforce on the content of a work-life balance policy will be helpful in preparing for the EU directive and adapting to new and evolving ways of working.
For further information on this topic please contact Linda Hynes at Lewis Silkin Ireland by telephone (+353 1566 9876) or email (email@example.com). The Lewis Silkin Ireland website can be accessed at www.lewissilkin.com/en/ireland.
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