Spreading out unpaid maternity leave query

tatli_lokma

Hi Folks,

one of our staff is going on maternity leave in January. She has asked if she can take the additional unpaid leave (16 weeks (80 days)) as 2 days per week for 24 weeks, and then 1 day per week for the remaining 32 weeks. I have no issue with this as companies I have worked for in the past have permitted it, and it can work out quite well.

It also means that instead of having to pay for a replacement for her for a further 16 weeks full time, she can return to work sooner meaning that we will save money as we will only be paying her for 3 or 4 days. There are additional duties which she currently does which are not actually part of her job, and really should be done by a more junior member of staff, so this will be a good opportunity for her to drop these and in which case she should be more than able to manage her 'proper' job in the shortened week. In addition, these extra duties could easily be taken on by a junior member of the team. There is a possibility that after the year of part time unpaid work that if it works she will continue on that, so possibly saving the company money long term. She is more than happy with that, and equally has agreed that if something should happen that it is not possible for her to work p/t she will return to her f/t hours. So to me its a win/win all round.

However, my current manager has never come across this agreement before (I think the last time he had a direct employee go on maternity leave was about 5 years ago!), and is concerned that this is not permitted. I have looked up a few sources and I can't see anything preventing it as long as both employer and employee agree.

Does anyone know of a resource I can quote which either says it is ok to do this or not?

Most grateful!
TL

tatli_lokma

BTW I should have mentioned - I know that the unpaid maternity leave is supposed to be consecutive and the employee advises SW so that they continue to get PRSI. But in this case, I suppose it is almost that instead of taking unpaid maternity the employee is taking unpaid leave. They are aware that their PRSI will only be based on the short working week, and not full weeks as it would be with SW, but they don't mind as they will actually be getting more PRSI paid as they will have wages.

So its really more a case of the employer agreeing to give LWOP for the same duration as unpaid maternity leave. I am not aware of any legal reason why this can't be done, but would be grateful if anyone knows of any solid sources to back this up.

Eoin

All I can find is that the leave should start immediately, but it doesn't say that it has to be continuous. However, there could be implicit conditions that it's a solid block of time at work, or fall into the same rules governing maternity pay.

Is the simplest solution to use parental leave instead? That can be taken on a regular basis as you've described, provided that the employer is happy to do so. I've no idea how that would work with PRSI though.

You'd obviously want to make sure that you're not denying maternity leave.

In fact, this can be a bit of a minefield - your employer should really have someone who can advise on these things for definite.

tatli_lokma

the Workplace relations booklet states that:

A pregnant employee is entitled to
• 26 consecutive weeks of maternity leave;
• 16 consecutive weeks additional (unpaid) maternity leave beginning immediately after the end of her maternity leave.

so it seems it must be consecutive.

Offering parental leave instead won't work as it is supposed to be:

The 18 weeks per child may be taken in one continuous period or in 2 separate blocks of a minimum of 6 weeks

I suppose what we are wondering, given the additional leave is optional and up to the mother to decide if she wants it, if she choses to opt out and return to work, and instead comes to an agreement with her employer to instead take the equivalent amount of days as unpaid leave, why would that pose any problems? We are in no way refusing the maternity leave, it is the employee requesting not to take it and instead come to an agreement with us for LWOP. If it was a case that she decided she wants to take the 16 weeks we would have no problem allowing her to take them. We would ensure that there are agreements in writing to confirm this.

I have worked in other companies where they would allow this option. i.e they did not say you can break up your maternity leave, but instead offered that if you chose not to take the 16 weeks, you could negotiate alternative 'short working' arrangements totalling the same period. We had several women who availed of the option, as it was easier to budget for unpaid leave spread out over a number of months, than it is to take 16 weeks unpaid leave in a chunk.

I can't see any regulations stating that a woman can't chose to decline her additional leave, and come to an alternative agreement with her employer.

But it is the fact that there is nothing explicitly saying we can/can't do it that is worrying my boss. We have asked our solicitor, but TBH he wasn't much help!

Eoin

The full text from citizensinformation.ie reads:

The 18 weeks per child may be taken in one continuous period or in 2 separate blocks of a minimum of 6 weeks. There must be a gap of at least 10 weeks between the 2 periods of parental leave per child. However, if your employer agrees you can separate your leave into periods of days or even hours.

This is exactly what my wife does - she works a reduced week instead of taking a block of time in one go.

tatli_lokma wrote: »

We are in no way refusing the maternity leave, it is the employee requesting not to take it and instead come to an agreement with us for LWOP. If it was a case that she decided she wants to take the 16 weeks we would have no problem allowing her to take them. We would ensure that there are agreements in writing to confirm this.
...
I can't see any regulations stating that a woman can't chose to decline her additional leave, and come to an alternative agreement with her employer.

Absolutely - it's just making sure that you've got it all documented.

tatli_lokma wrote: »

But it is the fact that there is nothing explicitly saying we can/can't do it that is worrying my boss. We have asked our solicitor, but TBH he wasn't much help!

Hopefully the link above does prove that you can break up parental leave, provided that the employer is OK with it.

tatli_lokma

Our company policy is only to allow parental leave to be broken up in exceptional cases where it can be proved necessary. TBH she doesn't HAVE to stay home 2 days a week, she would just prefer to from a practical and cost perspective.

Having previously spoken through the options with the staff member, she would prefer to take LWOP rather than parental leave. She is s single parent, and already has a 5 year old who was sick for a number of months when he was a toddler. I can appreciate why she would not want to use up her parental leave just in case (god forbid) it was needed. I have no issue with her keeping her parental leave in tact, and giving her LWOP to equate to a maximum of 80 days (the equivalent number of days were she to take additional maternity). It works both for me as a manager and her as an employee and a mother.

In theory, my boss has no issue with the proposal. He just doesn't want to agree to it without some proof that in doing so he is not breaking the law/breaching employee rights.

I can't see how it would be the case provided it was all documented and agreed to in advance between all parties. In fact we would actually be giving her additional rights to what we need to, because we would treat that period of LWOP in the same way as we would maternity in regards to leave accrual and bank holidays, pension payments etc. So the employee is really not losing out on any benefits or entitlements and is actually getting more than technically provided for under LWOP provisions.

I'm just finding it tough finding a definitive source which says yay or nay as that is what the boss wants.

Mrs OBumble

Can you get your lawyer to say "no you're not breaking any laws" - if that's all the boss wants.

tatli_lokma

You would think that would be the easiest way, wouldn't you?? but the solicitor is rubbish TBH, we recently got new contracts for new staff and he was including things he shouldn't have and not including things he should have and it had to be pointed out to him. All the to-ing and fro-ing took 3 weeks and cost a bomb. But he is a crony of the boss so allowances are made! Personally I wouldn't trust advice he gives as he was quite off the mark on a number of things in the past.

Gliding123

Hi tatli_lokma - I am in the exact same postion as your employee. Soon to announce pregnancy and would like to make similar proposal to my employer. I would be very grateful if you can let me know where you got to on this to ensure to legal ramifications - seem to be mixed views on the required use of th 16 weeks on other websites