Maternity Protection Act , 1994

PART I Preliminary and General

1. Short title and commencement.

1.—(1)This Act may be cited as the Maternity Protection Act, 1994.

(2)This Act shall come into operation on such day as may be fixed by order made by the Minister, and different days may be so fixed for different provisions and for different purposes.

2. Interpretation.

2.—(1)In this Act—

“the 1977 Act” means the Unfair Dismissals Act, 1977;

“the 1981 Act” means the Maternity Protection of Employees Act, 1981;

“the 1989 Act” means the Safety, Health and Welfare at Work Act, 1989;

“the 1992 Directive” means Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding;

F1["Act of 2001" means the Local Government Act 2001;]

F2["Act of 2015" means the Children and Family Relationships Act 2015;]

“additional maternity leave” has the meaning assigned by section 14;

“associated employer” has the meaning assigned by section 27 (3);

“the Authority” means the National Authority for Occupational Safety and Health;

“confinement” and “the date of confinement” have the meanings respectively assigned to them by section 41 of the Social Welfare (Consolidation) Act, 1993;

“contract of employment” means, subject to subsection (2)—

(a)a contract of service or apprenticeship, or

(b)any other contract whereby an individual agrees with a person who is carrying on the business of an employment agency, within the meaning of the Employment Agency Act, 1971, and is acting in the course of that business, to do or perform personally any work or service for another person (whether or not that other person is a party to the contract),

whether the contract is express or implied and if express, whether it is oral or in writing;

“employee”, subject to subsection (2), means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

“employee who has recently given birth” means at any time an employee whose date of confinement was not more than 14 weeks earlier and who has informed her employer of her condition;

F3[“employee who is breastfeeding”means at any time an employee whose date of confinement was not more than one hundred and four weeks earlier, who is breastfeeding and who has informed her employer of her condition;]

“employer”, subject to subsection (2), means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

F2["expectant father" shall be construed in accordance withsubsection (1A)(inserted by section 176 of the Act of 2015);]

“job” has the meaning assigned by section 26 (3);

F1["local authority" has the meaning assigned to it by the Act of 2001;]

“maternity leave” has the meaning assigned by section 8;

“the Minister” means the Minister for Equality and Law Reform;

F2["other parent" means a person (other than the mother) who is, undersection 5of the Act of 2015, a parent of a child;]

F4["parent’s leave" has the same meaning as it has in the Parent’s Leave and Benefit Act 2019;]

F5["paternity leave" and "transferred paternity leave" have the same meanings as they have in the Paternity Leave and Benefit Act 2016;]

“pregnant employee” means an employee who is pregnant and who has informed her employer of her condition;

F6["premature birth period" has the meaning assigned to it by theSocial Welfare Consolidation Act 2005;]

“successor” has the meaning assigned by section 26 (1);

“the Tribunal” means the Employment Appeals Tribunal.

F2[(1A) In this Act, a reference to an expectant father includes a person who has given his or her consent in accordance with section 11 of the Act of 2015 to a DAHR procedure (within the meaning ofsection 4of that Act) where that procedure results in a pregnancy.]

(2)For the purposes of this Act—

(a)a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, shall be deemed to be an employee employed by the State or Government, as the case may be, under a contract of service;

(b)an officer or servant of a local authority for the purposes of the Local Government Act, 1941, a harbour authority, a health board or F7[a member of staff of an education and training board] shall be deemed to be an employee employed by the authority F7[or board], as the case may be, under a contract of F8[service;]

(c)in relation to an employee whose contract of employment falls (or, where the employment has ceased, fell) within paragraph (b) of the definition of “contract of employment” in subsection (1), the person who is liable to pay the employee’s wages shall be deemed to be F8[the employer; and]

F1[(d)a member of a local authority shall be deemed to be an employee of the local authority employed under a contract of service for a fixed term.]

(3)Subject to subsections (1) and (2), expressions used in this Act have the same meaning as in the 1992 Directive.

(4)In this Act a reference to a Part or section is to a Part or section of this Act, unless it is indicated that reference to some other enactment is intended.

(5)In this Act a reference to a subsection or paragraph is to the subsection or paragraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.

(6)In this Act a reference to an enactment includes a reference to that enactment as amended by any other enactment, including this Act.

3. Orders and regulations.

3.—(1)The Minister may, in relation to any provision of this Act relating to notification (or confirmation of notification), by order vary any such provision.

(2)An order under this Act may contain such consequential, supplementary and ancillary provisions, including any provisions modifying any provision of this Act, as the Minister considers necessary or expedient.

(3)Any power under this Act to make an order includes power to amend or revoke an order made in the exercise of that power.

(4)Where an order is proposed to be made under this Act, other than an order under section 1, a draft of the order shall be laid before both Houses of the Oireachtas, and the order shall not be made until a resolution approving the draft has been passed by each such House.

(5)Every regulation made under this Act shall be laid before each House of the Oireachtas as soon as practicable after it is made and, if a resolution annulling the regulation is passed by either such House within the next twenty-one days on which the House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done under the regulation.

4. Voidance or modification of certain provisions in agreements.

4.—(1)A provision in any agreement shall be void in so far as it purports to exclude or limit the application of any provision of this Act or is inconsistent with any provision of this Act.

(2)A provision in any agreement which is or becomes less favourable in relation to an employee than a similar or corresponding entitlement conferred on the employee by this Act shall be deemed to be so modified as to be not less favourable.

(3)Nothing in this Act shall be construed as prohibiting any agreement from containing any provision more favourable to an employee than any provision in Parts II to VI.

(4)References in this section to an agreement are to any agreement, whether a contract of employment or not, and whether made before or after the commencement of this Act.

5. Expenses.

5.—Any expenses incurred by the Minister or the Minister for Enterprise and Employment in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

6. Repeal of 1981 Act, as amended.

6.—(1)The Maternity Protection of Employees Acts, 1981 and 1991 (which are replaced by the provisions of this Act) are hereby repealed.

(2)The repeal by this Act of the Maternity Protection of Employees Acts, 1981 and 1991 does not affect the construction of any reference in any other Act which defines “employee” or “employer” or any other expression by reference to those Acts (or the 1981 Act alone).

(3)In section 37 (4) (a) of the Social Welfare (Consolidation) Act, 1993 for “the Maternity Protection of Employees Act, 1981” there shall be substituted “the Maternity Protection Act, 1994”.

(4)In so far as any order or regulation made, notification given or other thing done under an enactment repealed by this Act could have been made, given or done under a corresponding provision of this Act, it shall have effect as if so made, given or done.

(5)Where a period of time specified in any enactment repealed by this Act is current at the commencement of this Act, this Act shall have effect as if the corresponding provision thereof had been in force when that period began to run.

PART II Maternity Leave

7. Interpretation of Part II.

7.—(1)In this Part “the minimum period of maternity leave” has the meaning assigned by section 8.

(2)F9[…]

(3)References in this Part to a pregnant employee include, as respects any time before the expiry of her maternity leave, an employee who was pregnant immediately before that leave began.

8. Entitlement to maternity leave.

F10[8.—(1) Subject to this Part, a pregnant employee shall be entitled to leave, to be known (and referred to in this Act) as "maternity leave", from her employment for a period (in this Part referred to as "the minimum period of maternity leave" of not less than—

(a)F11[26 consecutive weeks], or

(b)F12[26 weeks]part of which is postponed in accordance withF13[section 14Borsection 14C],

as may be appropriate.

F14[(1A) Subject to this Part, a pregnant employee referred to insubsection (1)shall be entitled to a further period of maternity leave that is in addition to the minimum period of maternity leave referred to inparagraphs (a)or(b)ofsubsection (1), if, on or after 1 October 2017 the date of confinement occurs more than 2 weeks before the expected week of confinement.

(1B) The duration of the further period of maternity leave referred to insubsection (1A)shall be equal to the duration of the premature birth period.]

(2) The Minister may by order, made with the consent of the Minister for Social and Family Affairs and the consent of the Minister for Finance, amendsubsection (1)andsection 13(2)so as to extend the period mentioned in each of those subsections.]

8A. F15[Supplemental provisions relating to premature birth period

8A.—The further period of maternity leave referred to insection 8(1A)shall be without prejudice tosections 12,14,14Aand14B.]

9. Notification to employer.

9.—(1)F16[Subject tosubsection (3), entitlement] to the minimum period of maternity leave shall be subject to a pregnant employee—

(a)having, as soon as reasonably practicable but not later than four weeks before the commencement of maternity leave, notified in writing her employer (or caused her employer to be so notified) of her intention to take maternity leave; and

(b)having, at the time of the notification, given to her employer or produced for her employer’s inspection a medical or other appropriate certificate confirming the pregnancy and specifying the expected week of confinement.

(2)A notification under this section may be revoked by a further notification in writing by the employee concerned to her employer.

F16[(3)A notification under this section required to be effected by a member of a local authority to the local authority shall be effected by giving the notification to the meetings administrator, referred to in section 46 of the Act of 2001, of the local authority.]

10. Allocation of minimum period of maternity leave.

10.—(1)Subject to subsection (2) and sections 11 to 13, the minimum period of maternity leave shall commence on such day as the employee selects, being F17[not later than two weeks before the end of the expected week of confinement], and shall end on such day as she selects, being not earlier than four weeks after the end of the expected week of confinement.

(2)Where an employee is employed under a contract for a fixed term and that term expires before the day which, apart from this subsection, would be the last day of her maternity leave, then—

(a)notwithstanding any other provision in this Part, the last day of her maternity leave shall be the day on which the term expires; and

(b)nothing in this Part shall affect the termination of the employee’s contract of employment on that day.

11. Variation in allocation of minimum period of maternity leave.

11.—(1)Where it is certified by a registered medical practitioner or otherwise to the satisfaction of the Minister and the Minister for Social Welfare that, for an employee specified in the certificate, the minimum period of maternity leave should for a medical reason so specified commence on a date so specified, and the certificate is produced for inspection by the employer concerned within such period as may be prescribed by regulations made by the Minister under this section, the minimum period of maternity leave for that employee shall commence on the date so specified.

(2)Where a certificate under this section is issued and the requirement in subsection (1) relating to the production of the certificate for the employer’s inspection is complied with, the employee specified in the certificate—

(a)shall be taken to have informed her employer of her pregnancy (if she had not previously done so); and

(b)shall be deemed to have complied also with section 9 (1) (a).

12. Extension of maternity leave.

12.—(1)Where the date of confinement of a pregnant employee occurs in a week after the expected week of confinement, the minimum period of maternity leave shall be extended by such number of consecutive weeks (subject to a maximum of four consecutive weeks) after the week in which the date of confinement occurs as ensures compliance with section 10.

(2)Where the minimum period of maternity leave is proposed to be extended under this section, the employee concerned shall—

(a)as soon as practicable after the proposal for such extension, notify in writing her employer (or cause her employer to be so notified) of the proposed extension; and

(b)as soon as practicable after the date of confinement, confirm in writing to her employer the notification under paragraph (a) and specify the duration of the extension.

13. Commencement of maternity leave (early confinement).

13.—(1)Where, in relation to a pregnant employee, the date of confinement occurs in a week that is four weeks or more before the expected week of confinement, the employee shall, where the circumstances so require, be deemed to have complied with section 9 (1) (a) if the notification required by that section is given in the period of 14 days commencing on the date of confinement.

F18[(2) Notwithstandingsection 10(1), but subject to regulations undersection 11, the minimum period of maternity leave for an employee referred to insubsection (1)shall be a period of not less than—

(a)F19[26 consecutive weeks]F20[and a further period of maternity leave in respect of a date of confinement that occurred on or after 1 October 2017, the duration of which is equal to the duration of the premature birth period], or

(b)F19[26 weeks]F20[and a further period of maternity leave in respect of a date of confinement that occurred on or after 1 October 2017, the duration of which is equal to the duration of the premature birth period]part of which is postponed in accordance withF21[section 14Borsection 14C],

as may be appropriate, commencing on whichever of the following is the earlier—

(i) the first day of maternity leave taken in accordance withsection 10, or

(ii) the date of confinement.]

13A. F22[Additional provision for certain early confinement circumstances

13A.—Where, on or after 1 October 2017, the date of confinement of a pregnant employee occurs more than 2 weeks before the expected week of confinement but less than 4 weeks before that expected week, notwithstandingsection 10(1), the minimum period of maternity leave for a pregnant employee other than a pregnant employee referred to insection 13(1)or13(2), shall be a period of not less than—

(a) 26 consecutive weeks and a further period of maternity leave the duration of which is equal to the duration of the premature birth period, or

(b) 26 weeks and a further period of maternity leave the duration of which is equal to the duration of the premature birth period part of which is postponed in accordance withsection 14B,

and which commences on the date of confinement.]

14. Entitlement to additional maternity leave.

14.—F23[(1)An employee who has taken maternity leave shall, if she so wishes, be entitled in accordance with this section to further leave from her employment, to be known (and referred to in this Act) as "additional maternity leave", for a maximum period of—

(a)F24[16 consecutive weeks]commencing immediately after the end of her maternity leaveF25[and, where applicable, any period of transferred paternity leave taken by her], or

(b)F24[16 weeks], all or part of which is postponed in accordance withsection 14B, commencing either in accordance with that section or immediately after the end of her maternity leaveF25[and, where applicable, any period of transferred paternity leave taken by her],

as may be appropriate.]

(2) An employee shall be entitled to additional maternity leave, whether or not the minimum period of maternity leave has been extended under section 12.

(3)F23[Subject tosection 14B, entitlement to additional maternity leave] shall be subject to an employee having notified in writing her employer (or caused her employer to be so notified) in accordance with subsection (4) of her intention to take such leave.

F26[(4) Notification undersubsection (3)shall be given either at the same time as the relevant notification undersection 9or not later than four weeks before—