Paternity Leave and Benefit Act 2016

PART 1 Preliminary and General

1.. Short title and commencement

1. (1) This Act may be cited as the Paternity Leave and Benefit Act 2016.

(2) This Act, other than Part 5, shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to a particular purpose or provision and different days may be so appointed for different purposes or different provisions.

(3) Part 5 shall come into operation on such day or days as the Minister for Social Protection may appoint by order or orders either generally or with reference to a particular purpose or provision and different days may be so appointed for different purposes or different provisions.

2.. Interpretation

2. (1) In this Act—

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

“Act of 1994” means the Maternity Protection Act 1994;

“Act of 1995” means the Adoptive Leave Act 1995;

“Act of 2005” means the Social Welfare Consolidation Act 2005;

“Act of 2010” means the Adoption Act 2010;

“Act of 2015” means the Workplace Relations Act 2015;

“additional adoptive leave” has the same meaning as it has in the Act of 1995;

“additional maternity leave” has the same meaning as it has in the Act of 1994;

“adjudication officer” means a person appointed under section 40 of the Act of 2015;

F1[…]

“adoptive leave” has the same meaning as it has in the Act of 1995;

“birth certificate” means a document issued under section 13(4) of the Civil Registration Act 2004;

“certificate of placement” has the meaning assigned to it by section 13 of the Act of 1995;

“civil partner” shall be construed in accordance with section 3 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;

“cohabitant” shall be construed in accordance with section 172(1) of the Civil Partnership and Certain Rights and Obligations of Cohabitants 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 another person, who is carrying on the business of an employment agency, within the meaning of section 2 of the Protection of Employees (Temporary Agency Work) Act 2012), 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;

“date of confinement” shall be construed in accordance with section 51(1)(b) of the Act of 2005;

“day of placement” means the day on which a child who is, or is to be, adopted is placed physically in the care of F2[the qualifying adopter] with a view to the adoption of the child or, in the case of an intercountry adoption effected outside the State where the child has not previously been placed in the care of F2[the qualifying adopter], the day on which the child has been so placed following the adoption;

“declaration of eligibility and suitability” has the same meaning as it has in the Act of 2010;

“Director General” has the same meaning as it has in the Act of 2015;

F1[…]

“employee”, other than in section 29, means a person of any age, who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and includes a part-time employee and a fixed-term employee;

“employer” in relation to an employee—

(a) means 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, subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of contract of employment is liable to pay the remuneration of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer, and

(b) includes, where appropriate, the successor of the employer or an associated employer of the employer;

“enactment” has the same meaning as it has in the Interpretation Act 2005;

“expected week of confinement” has the meaning assigned to it by section 47(1)(a) of the Act of 2005;

“fixed-term employee” has the same meaning as it has in the Protection of Employees (Fixed-Term Work) Act 2003;

“intercountry adoption effected outside the State” has the same meaning as it has in the Act of 2010;

“Labour Court” means the body established by section 10 of the Industrial Relations Act 1946;

“maternity leave” has the same meaning as it has in the Act of 1994;

“Minister” means the Minister for Justice and Equality;

“part-time employee” has the same meaning as it has in Part 2 of the Protection of Employees (Part-Time Work) Act 2001;

“paternity leave” has the meaning assigned to it by section 6(1);

F3["qualifying adopter", in relation to a child who is, or is to be adopted, means the qualifying adopter, within the meaning of the Act of 1995 (as amended by the Family Leave and Miscellaneous Provisions Act 2021), of the child and includes, for the purposes of this Act, a person who would be a qualifying adopter but for the fact that he or she is not an employee;]

“registered medical practitioner” has the same meaning as it has in the Medical Practitioners Act 2007;

F1[…]

“relevant evidence”, in relation to an employee, means a medical certificate signed by a registered medical practitioner;

“relevant parent”, in relation to a child, means a person (other than the mother of the child) who is—

F2[(a) in the case of a child who is, or is to be adopted, the spouse, civil partner or cohabitant, as the case may be, of the qualifying adopter of the child,]

or

(b) in any other case—

(i) the father of the child,

(ii) the spouse, civil partner or cohabitant, as the case may be, of the mother of the child, or

(iii) a parent of the child under section 5 of the Children and Family Relationships Act 2015 where the child is a donor-conceived child within the meaning of Part 2 of that Act;

F1[…]

“surviving parent”, in relation to a child whose relevant parent has died, means—

(a) in the case of a child who is, or is to be, adopted, F2[the qualifying adopter] of the child, or

(b) in any other case, the mother of the child;

“transferred paternity leave” has the meaning assigned to it by section 15(1).

(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, and

(b) an officer or servant of a local authority for the purposes of the Local Government Act 2001, a harbour authority or the Health Service Executive or a member of staff of an education and training board shall be deemed to be an employee employed by the authority, Executive or board, as the case may be, under a contract of service.

(3) For the purposes of this Act, one employer shall be taken to be associated with another employer—

(a) if one is a body corporate of which the other (whether directly or indirectly) has control, or

(b) if both are bodies corporate of which a third person (whether directly or indirectly) has control.

(4) For the purposes of section 17 and Parts 3 and 4, a reference to paternity leave includes a reference to transferred paternity leave.

(5) A reference in this Act to a child who is, or is to be, adopted is a reference to a child who is, or is to be, the subject of—

(a) an adoption order within the meaning of the Act of 2010, or

(b) an intercountry adoption effected outside the State and recognised under that Act.

3.. Regulations

3. (1) The Minister may by regulations provide for any matter for the purposes of enabling any provision of this Act to have full effect.

(2) The Minister for Jobs, Enterprise and Innovation may by regulations provide for any matter referred to in section 28 as prescribed or to be prescribed and different regulations under this subsection may be made in respect of different classes of matter the subject of the prescribing concerned.

(3) Without prejudice to any provisions of this Act, regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister, or where subsection (2) applies, to the Minister for Jobs, Enterprise and Innovation, to be necessary or expedient for the purposes of the regulations concerned.

(4) Every regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House sits 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 the inclusion in an agreement of a provision more favourable to an employee than any provision in Part 2.

(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. The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.

PART 2 Paternity Leave

6.. Entitlement to paternity leave

6. (1) Subject to this Part, an employee who is a relevant parent in relation to a child shall be entitled to 2 weeks’ leave from his or her employment, to be known (and referred to in this Act) as “paternity leave”, to enable him or her to provide, or assist in the provision of, care to the child or to provide support to F4[the qualifying adopter] or mother of the child, as the case may be, or both.

(2) Other than where section 12 applies, the period of leave referred to in subsection (1) shall comprise a single period of 2 weeks.

(3) Subject to subsection (4), only one person who is a relevant parent in relation to a child shall be entitled to paternity leave in respect of that child.

(4) Subsection (3) shall not operate to prevent paternity leave from being taken by a relevant parent referred to in paragraph (a) of the definition of relevant parent in section 2(1) in respect of a child by reason only that paternity leave has prior to the adoption of the child, been taken in respect of that child by a person other than that relevant parent.

(5) Where the birth of a child is part of a multiple birth or a person adopts 2 or more children at the same time, a person who is a relevant parent in relation to the children concerned shall only be entitled to one period of paternity leave under this section in respect of the children concerned.

(6) Subsection (1) applies—

(a) in the case of a child who is, or is to be, adopted where the day of placement in respect of the child falls on or after 1 September 2016, or

(b) in any other case, where the date of confinement in respect of the child falls on or after 1 September 2016.

(7) A person may not avail of paternity leave under this Act where the person avails of adoptive leave under section 6 of the Act of 1995.

7.. Notification to employer

7. (1) Subject to this section and sections 9, 13(2) and 14(2), entitlement to paternity leave shall be subject to an employee who is a relevant parent in relation to a child having notified in writing and in accordance with subsection (2) or (5) his or her employer (or caused his or her employer to be so notified) of his or her intention to take paternity leave.

(2) A notification referred to in subsection (1) may be given—

(a) in the case of a child who is, or is to be, adopted, as soon as reasonably practicable but not later than 4 weeks before the expected day of placement, or

(b) in any other case, as soon as reasonably practicable but not later than 4 weeks before the expected week of confinement of the expectant mother concerned.

(3) A relevant parent who has given a notification to his or her employer in accordance with subsection (2) shall, other than where subsection (4) applies—

(a) in the case of an adoption, other than an intercountry adoption effected or to be effected outside the State, cause his or her employer to be—

(i) notified in writing as soon as reasonably practicable of the expected day of placement, and

(ii) supplied as soon as reasonably practicable but not later than 4 weeks after the day of placement with a copy of the certificate of placement that F5[the qualifying adopter] has supplied to her or his employer, as the case may be, under section 7(1)(c) of the Act of 1995,

(b) in the case of an intercountry adoption effected or to be effected outside the State, cause his or her employer to be—

(i) notified in writing as soon as reasonably practicable of the expected day of placement,

(ii) supplied before the expected day of placement, if not already so supplied, with a copy of an applicable declaration of eligibility and suitability that F5[the qualifying adopter] has supplied to his or her employer, as the case may be, under section 7(2)(c) of the Act of 1995, and

(iii) supplied as soon as reasonably practicable after the day of placement with particulars in writing of the placement,

or

(c) in any other case, at the time of the notification or as soon as reasonably practicable afterwards, give to his or her employer or produce for his or her employer’s inspection a copy of the medical, or other appropriate, certificate confirming the pregnancy of the expectant mother concerned and specifying the expected week of confinement of the expectant mother concerned that she has given to, or produced for the inspection of, her employer under section 9 of the Act of 1994.

(4) A relevant parent who has given a notification to his or her employer in accordance with subsection (2) shall—

(a) in the case of an adoption where F5[the qualifying adopter] is not an employee or the relevant parent concerned is a relevant parent referred to in paragraph (a)(i) of the definition of relevant parent in section 2(1), cause his or her employer to be—

(i) notified in writing as soon as reasonably practicable of the expected day of placement,

(ii) supplied before the expected day of placement, if not already supplied, with a copy of an applicable declaration of eligibility and suitability, and

(iii) supplied as soon as reasonably practicable after the day of placement with particulars in writing of the placement,

or

(b) in any other case, and where the expectant mother is not an employee, at the time of the notification or as soon as reasonably practicable afterwards cause his or her employer to be supplied with a statement signed by a registered medical practitioner confirming the pregnancy of the expectant mother concerned and specifying the expected week of confinement of the expectant mother concerned.

(5) An employee who has not given a notification to his or her employer in accordance with subsection (2) or who having given such notification has revoked it under subsection (7) may notify the employer concerned (or cause the employer concerned to be so notified) of his or her intention to take paternity leave not later than 4 weeks before the commencement of such leave.

(6) A relevant parent who has given a notification to his or her employer in accordance with subsection (5) shall at the time of the notification or as soon as reasonably practicable afterwards cause his or her employer to be supplied with—

(a) in the case of an adoption, other than an intercountry adoption effected or to be effected outside the State or an adoption to which subsection (4)(a) applies, a copy of the certificate referred to in subsection (3)(a)(ii),

(b) in the case of an intercountry adoption effected or to be effected outside the State, other than an adoption to which subsection (4)(a) applies, the particulars referred to in subsection (3)(b)(iii),

(c) in the case of an adoption to which subsection (4)(a) applies, the particulars referred to in subsection (4)(a)(iii), or

(d) in any other case, a copy of the birth certificate issued to the child concerned.

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

8.. Allocation of paternity leave

8. (1) Subject to this section, section 10 and sections 12 to 14, the period of paternity leave shall commence on such day as the relevant parent selects in his or her notification given in accordance with subsection (2) or (5) of section 7, being not earlier than the date of confinement or day of placement, as the case may be, and not later than 26 weeks after such date or day.

(2) Where a relevant parent is employed under a contract of employment for a fixed term and that term expires before the day which, apart from this subsection, would be the last day of his or her paternity leave, then—

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

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

9.. Commencement of paternity leave (early confinement)

9. Where the date of confinement occurs in a week that is 4 weeks or more before the expected date of confinement, the relevant parent in relation to the child concerned shall, where the circumstances so require, be deemed to have complied with section 7 if the notification required by that section is given in the period of 7 days commencing on the date of confinement.

10.. Postponement of paternity leave