Adoptive Leave Act , 1995

PART I Preliminary and General

1. Short title and commencement.

1.—(1)This Act may be cited as the Adoptive Leave Act, 1995.

(2)This Act shall come into operation on such day as the Minister shall by order appoint.

2. Interpretation.

2.—(1)In this Act, except where the context otherwise requires—

F1["accredited body" means a body of persons whose name is entered in the register of accredited bodies maintained underPart 13of the Adoption Act 2010;]

“the Act of 1967” means the Redundancy Payments Act, 1967;

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

F2["Act of 2010" means the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;]

F1["adoption order" means an adoption order within the meaning ofsection 3(1) of the Adoption Act 2010;]

F3["adoptive leave" has, subject tosubsection (2A), the meaning assigned to it bysection 6(1)or, as the case may be,section 9(1);]

F3["additional adoptive leave" has, subject tosubsection (2A), the meaning assigned to it bysection 8(1)or, as the case may be,section 10(1);]

F4[…]

F4[…]

“adopting parent” means F5[qualifying adopter or surviving parent];

“associated employer” shall be construed in accordance with section 19 (3);

F1["Authority" has the meaning assigned to it bysection 3(1) of the Adoption Act 2010;]

“certificate of placement” has the meaning assigned to it by section 13;

F2["civil partner" shall be construed in accordance with section 3 of the Act of 2010;]

F2["cohabitant" shall be construed in accordance with section 172(1) of the Act of 2010;

"cohabiting couple" has the same meaning as it has in the Adoption Act 2010;]

“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;

F2["couple", in relation to the definition of "qualifying adopter", means a married couple, a couple who are civil partners of each other or a cohabiting couple;]

“day of placement” means—

(a)the day on which the child is placed physically in the care of the adopting parent with a view to the making of an adoption order, or

(b)the day on which the child is placed physically in the care of the adopting parent with a view to the effecting of a foreign adoption, or

(c)in the case of a foreign adoption, where the child has not previously been placed in the care of the adopting parent, the day on which the child has been so placed following the adoption;

F4[…]

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

“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;

F6["foreign adoption" means an intercountry adoption effected outside the State within the meaning ofsection 3(1) of the Adoption Act 2010;]

“health board” means a health board established pursuant to the Health Act, 1970;

“the Minister” means the F5[Minister for Children, Equality, Disability, Integration and Youth;]

F7["parent's leave" has the same meaning as it has in the Parent’s Leave and Benefit Act 2019;]

F8[“paternity leave”and“transferred paternity leave”have the same meanings as they have in the Paternity Leave and Benefit Act 2016;]

F9["postponed leave" has the meaning assigned to it bysection 11C(2)(c);]

“prescribed” means prescribed by order or regulation under this Act;

F2["qualifying adopter" means—

(a) where a child is placed, or is to be placed, in the care of a couple (of whom neither is the mother or father of the child), with a view to the making of an adoption order, or to the effecting of a foreign adoption or following any such adoption, the member of the couple who is—

(i) an employee, and

(ii) chosen by the couple to be the qualifying adopter for the purposes of this Act,

(b) in any other case, an employee, who is not a surviving parent in relation to the child, in whose care a child has been placed or is to be placed with a view to the making of an adoption order, or to the effecting of a foreign adoption or following any such adoption;]

F10[…]

F4[…]

“the successor” has the meaning assigned to it by section 18;

F2["surviving parent" means an employee in whose care a child has been placed or is to be placed with a view to the making of an adoption order, or to the effecting of a foreign adoption or following any such adoption, where his or her spouse, civil partner or cohabitant, as the case may be, was the qualifying adopter in relation to the child and the qualifying adopter concerned has died;]

“the Tribunal” means the Employment Appeals Tribunal.

(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 F11[a member of staff of an education and training board] shall be deemed to be an employee employed by the authority F11[or board], as the case may be, under a contract of service; and

(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 F12[his or her] wages shall be deemed to be F12[his or her] employer.

F13[(2A) In this Act, except where the context otherwise requires, references to a period of adoptive leave or additional adoptive leave are references to—

(a) in case part of such leave is postponed under section 11C, the part already taken or the part postponed, as appropriate, or

(b) in any other case, a continuous such period, whether or not so postponed.]

(3)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.

(4)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.

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

3. Orders and regulations.

3.—(1)An order or regulation under this Act may contain such consequential, supplementary and ancillary provisions as the Minister considers necessary or expedient.

(2)The Minister may by order amend or revoke an order under this Act, including an order under this subsection.

(3)Where an order is proposed to be made under this Act, 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 of the draft has been passed by each such House.

(4)Before making an order or regulation under this Act, the Minister shall consult such organisations or other bodies of persons representative of employers and such organisations or other bodies of persons representative of trades unions or bodies analogous to trades unions as the Minister considers appropriate.

(5)Subsections (1) to (4) do not apply to an order under section 1 (2).

(6)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 21 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)In this section “agreement” means an agreement, whether a contract of employment or not, and whether made before or after the commencement of this Act.

(2)A provision in an 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.

(3)A provision in an agreement which is or becomes less favourable in relation to an adopting parent than a similar or corresponding entitlement conferred on F17[the adopting parent] by this Act shall be deemed to be so modified as to be not less favourable to F17[the adopting parent].

(4)Nothing in this or any other enactment shall be construed as prohibiting the inclusion in an agreement of a provision (subsequently referred to in this section as “the additional provision”) in relation to adoption, in addition to those required by this Act, the effect of which would be to render the agreement more favourable to an adopting parent than it would be if it did not include the additional provision.

(5)The inclusion of the additional provision in an agreement shall not, by reason of the fact that it applies to an adopting parent only, confer any right under this or any other enactment on an employee who is not an adopting parent.

5. Expenses.

5.—Any expenses incurred 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.

PART II Adoptive Leave

6. F18[Entitlement of employed adopting mother (or sole male adopter) to minimum period of adoptive leave.

6.—(1) Subject to this Part,F19[a qualifying adopter]shall be entitled to leave (to be known as "adoptive leave") from the employee’s employment.

(2) Adoptive leave shall begin on the date of placement and be for a minimum period of 16 weeks.

(3) The minimum period may be extended by order made by the Minister with the consent of the Minister for Social and Family Affairs and the Minister for Finance.]

F20[(4) A person may not avail of adoptive leave (within the meaning ofsubsection (1)) under this Act where the person avails of paternity leave under the Paternity Leave and Benefit Act 2016.]

6A. F21[Restrictions on entitlement to adoptive leave

6A.—...]

7. Notification of employer.

7.—(1)In the case of an adoption other than a foreign adoption, entitlement to the minimum period of adoptive leave shall be subject to F22[a qualifying adopter]—

(a)having, as soon as is reasonably practicable but not later than 4 weeks before the expected day of placement, caused F22[his or her] employer to be notified in writing of F22[his or her] intention to take adoptive leave, and

(b)having, as soon as is reasonably practicable, caused F22[his or her] employer to be notified in writing of the expected day of placement, and

(c)causing F22[his or her] employer to be supplied with the certificate of placement as soon as is reasonably practicable but not later than 4 weeks after the day of placement.

(2)In the case of a foreign adoption, entitlement to the minimum period of adoptive leave shall be subject to F22[a qualifying adopter]—

(a)having, as soon as is reasonably practicable but not later than 4 weeks before the expected day of placement, caused F22[his or her] employer to be notified in writing of F22[his or her] intention to take adoptive leave, and

(b)having, as soon as is reasonably practicable, caused F22[his or her] employer to be notified in writing of the expected day of placement, and

F23[(c) (i) having causedF22[his or her]employer to be supplied with a copy of an applicable "declaration of eligibility and suitability" (within the meaning ofsection 3(1) of the Adoption Act 2010) before the expected day of placement, if not already supplied, and]

(ii)causing F24[his or] her employer to be supplied with particulars in writing of the placement as soon as is reasonably practicable after the day of placement.

(3)A notification under this section may be revoked by a further notification in writing by or on behalf of F22[the qualifying adopter] to F24[his or] her employer.

(4)Where the day of placement is postponed, commencement of the period of adoptive leave shall also be postponed subject to F22[the qualifying adopter] causing F22[his or her] employer to be notified of the expected new day of placement as soon as is reasonably practicable.

8. Entitlement of employed adopting mother (or sole male adopter) to additional adoptive leave.

8.—(1)F25[(a) Subject to this Part,F26[a qualifying adopter]who is entitled to,F27[or is on, adoptive leave or transferred paternity leave]shall, on request, be entitled to further leave (to be known as "additional adoptive leave") from the employee’s employment.

(b) The additional adoptive leaveF28[or, where applicable, any period of transferred paternity leave]shall commence immediately after the adoptive leave and be for a maximum period of 8 weeks.

(c) The maximum period may be extended by order made by the Minister.]

(2)Entitlement to additional adoptive leave, in a situation other than one to which subsection (5) applies, shall be subject to F26[a qualifying adopter] having caused F26[his or her] employer to be notified in writing of F26[his or her] intention to take such leave.

(3)Notification under subsection (2) shall be given either at the same time as the relevant notification under section 7 (1) (a) or (2) (a) or not later than 4 weeks before the date which would have been the expected date of F26[his or her] return to work if the F26[the qualifying adopter] had not taken the F29[additional adoptive leave or, where theF26[the qualifying adopter]takes transferred paternity leave, the date on which the additional adoptive leave is, undersubsection (1)(b), to commence.]

(4)A notification under subsection (2) may be revoked by a further notification in writing by or on behalf of F26[the qualifying adopter] to F26[his or her] employer not later than 4 weeks before the date which would have been the expected date of F26[his or her] return to work if F26[the qualifying adopter] had not taken the additional adoptive leave.

(5)In the case of a foreign adoption, where F26[the qualifying adopter] requires a period of additional adoptive leave before the day of placement, for the purposes of familiarisation with the child who is to be adopted, some or all of the additional adoptive leave may be taken before the day of placement.

(6)Entitlement to additional adoptive leave under subsection (5) shall be subject to F26[the qualifying adopter]—

(a)having caused F26[his or her] employer to be notified in writing not later than 4 weeks before the date on which F26[he or she] intends to take such leave, of the intended date of commencement of such additional adoptive leave, and

F30[(b) having causedF26[his or her]employer to be supplied with a copy of an applicable instrument, prepared by or on behalf of the Central Authority of the state of the adoption, that is equivalent to a "declaration of eligibility and suitability" (within the meaning ofsection 3(1) of the Adoption Act 2010).]

(7)A notification under subsection (6) (a) may be revoked by a further notification in writing by or on behalf of F26[the qualifying adopter] to F26[his or her] employer.

(8)A period of additional adoptive leave under subsection (5) shall expire immediately before the day of placement.

9. Entitlement of adopting father to adoptive leave in certain circumstances.

9.—F31[(1)(a) WhereF32[a qualifying adopter]dies,F32[the surviving parent]shall be entitled to leave (to be known as "adoptive leave") fromF32[his or her]employment.

(b) The adoptive leave shall be for a period of—

(i) in caseF32[the qualifying adopter]dies on or after theday of placement, 16 weeks less the period between the date of placement and the date ofF32[his or her]death, or

(ii) in any other case, 16 weeks.

(c) The period may be extended by order made by the Minister with the consent of the Minister for Social and Family Affairs and the Minister for Finance.]

(2)Entitlement to a period of leave under subsection (1) shall be subject to F32[the surviving parent]—

(a)(i)having, as soon as is reasonably practicable before the commencement of the leave, caused F32[his or her] employer to be notified in writing of F32[his or her] intention to take such leave, or

(ii)in a case where F32[the qualifying adopter] died after the day of placement, causing F32[his or her] employer to be notified in writing of F32[his or her] intention to take such leave no later than the day on which F32[he or she] commences the leave,

and

(b)having, as soon as is reasonably practicable, caused F32[his or her] employer to be notified in writing of the day or expected day of placement, as may be appropriate, and

(c)(i)in the case of an adoption other than a foreign adoption, causing F32[his or her] employer to be supplied with the certificate of placement as soon as is reasonably practicable but not later than 4 weeks after the day of placement or 4 weeks after the commencement of the leave whichever is the later, or

(ii)in the case of a foreign adoption,

F33[(I) causingF32[his or her]employer to be supplied with a copy of an applicable instrument, prepared by or on behalf of the Central Authority of the state of the adoption, that is equivalent to a "declaration of eligibility and suitability" (within the meaning ofsection 3(1) of the Adoption Act 2010) as soon as reasonably practicable but not later than 4 weeks after the commencement of the leave, and]

(II)causing F32[his or her] employer to be supplied with particulars in writing of placement as soon as is reasonably practicable,

and

(d)causing, if requested, F32[his or her] employer to be supplied with a copy of the death certificate made in respect of the deceased F32[qualifying adopter] as soon as is reasonably practicable.

F34[(3)The period of adoptive leave referred to insubsection (1)shall commence on the latest of the following:

(a) within 7 days of the death ofF32[the qualifying adopter],