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Maternity

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MATERNITY PROTECTION ACTS, 1994 and 2004

The Maternity Protection Act, 1994 implemented Council Directive 92/85/EEC 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 breast-feeding.The Maternity Protection (Amendment) Act, 2004 extended the provisions of this legislation.

Statutory instruments:

  • S.I. 446/1994 - Safety, Health and Welfare at Work (Pregnant Employees, etc.) Regulations
  • S.I. 312/1994 - European Communities (Social Welfare) Regulations
  • S.I. 171995 - Maternity Protection (Disputes and Appeals) Regulations
  • S.I. 18/1995 - Maternity Protection (Time off for Ante-Natal and Post-Natal Care) Regulations
  • S.I. 19/1995 - Maternity Protection (Health and Safety Leave Certification) Regulations
  • S.I. 20/1995 - Maternity Protection (Health and Safety Leave Remuneration) Regulations
  • S.I. 29/2001 - Maternity Protection Act, 1994 (Extension of Period of Leave) Order, 2001
  • S.I. 653/2004 - Maternity Protection (Time off for Ante-Natal Classes) Regulations 2004
  • S.I. 654/2004 - Maternity Protection (Protection of Mothers who are Breastfeeding) Regulations 2004
  • S.I. 655/2004 - Maternity Protection (Postponement of Leave) Regulations 2004
  • S.I. 51/2006 - Maternity Protection (Extension of Periods of Leave) Order 2006

Scope

The legislation covers all female employees who:

  • are pregnant;
  • have recently given birth, i.e. within 14 weeks of giving birth;
  • are breast-feeding within 26 weeks following the birth; and
  • have informed their employer of their condition.

All female employees are covered, including:

  • all full-time, part-time and temporary employees;
  • apprentices;
  • officers in the public service, including members of the Garda Síochána and the Defence Forces;
  • officers in local authorities, harbour authorities, health boards, vocational education committees.

Agency workers are also covered. In the case of agency workers, responsibility for adhering to the law lies with the person who is liable to pay wages or salary. Therefore, in most cases, as it is the agency which pays the wages, it will be deemed to be the employer for the purposes of this Act.

There is no minimum hours threshold or service requirements under the 1994 and 2004 Acts. Employees on fixed-term contracts are covered. However, if their contract is due to expire during a period of protective leave provided for under this Act, the leave and any entitlement to benefits expire on the same day.

Key provisions

The main provisions under this legislation cover:

  • maternity leave;
  • a right to time off for ante-natal/ post-natal care;
  • accommodation of breastfeeding;
  • leave for fathers in exceptional circumstances;
  • health and safety leave;
  • employment protection.

Maternity leave

All employees covered by the Act are entitled to a minimum period of 26 weeks maternity leave, subject to certain conditions.The employer is not obliged to pay an employee during this period. An employee may claim social welfare maternity benefit for the duration of her maternity leave, provided that she has the necessary PRSI contributions. Of the 26 weeks, an employee must take at least two weeks before the end of the week in which her baby is due (as medically certified) and four weeks after that week. The remaining 20 weeks may be taken before or after the birth as the employee wishes.

Additional maternity leave

An additional period of up to 16 weeks leave may be taken immediately following the maternity leave period.This is referred to as additional maternity leave. No social welfare benefit is payable during this period.

An early confinement

Should confinement take place four weeks or more before the expected week of confinement, the employee is entitled to a full 26 weeks beginning on the date of the birth, or the first day of maternity leave (if she is already on leave) whichever is the earlier. She is required to notify her employer in writing within 14 days of the confinement of the changed circumstances.

A late confinement

In general, if the baby is born later than the expected week of confinement, no extension of maternity leave is given and the mother's expected date of return to work remains the same. Consequently, she does not need to notify her employer.

However, if the late birth means that an employee has less than four weeks maternity leave remaining after the week in which her baby was born, then she may extend her maternity leave to give her a full four weeks after the week of the birth. The maximum extension is four weeks. Any extension of the minimum period is treated as maternity leave for all purposes under the Act. During the extension, maternity benefit from the Department of Social Welfare will be paid.The term extended maternity leave is used to denote such an extension of maternity leave.

This extension should not be confused with additional maternity leave.After extended maternity leave, an employee can still avail of additional maternity leave provided she adheres to the normal notification requirements.

The employee must inform her employer in writing as soon as possible after an extension appears likely, as it affects the expected date of her return to work.

For More information on this act contact the General Secretary, Sean Lane, on 01-6761989