Proposal to extend maternity leave in the case of premature births

From 1^st October 2017, the period for which maternity benefit is paid is being extended in cases where a baby is born prematurely. The extended period of benefit will be equivalent to the duration between the actual date of birth of the premature baby and the date when the maternity leave was expected to commence (i.e. ordinarily two weeks before the expected date of birth). This new measure which takes effect for premature babies born on or after Sunday 1^st, October, will increase the duration of maternity leave and the associated maternity benefit to be paid in cases where a baby is born prematurely.

The paid leave will be added to the 26 week period already provided for under the Maternity Protection Acts 1994 and 2004. Premature births account for approximately just over 6% of births in Ireland annually.

The Minister for Employment Affairs and Social Protection, Regina Doherty, T.D. and the Minister for Justice and Equality, Charlie Flanagan T.D. this month jointly announced the new measure although we have yet to see any draft legislation to support it. Minister Flanagan whose Department has overall responsibility for the maternity protection acts has promised to ensure that the legislation is drafted in as timely a manner as possible.

The proposals do not address the question of whether employers who top up maternity benefit to full salary or to a proportion of salary will be required to top up this additional leave. While this is a matter for individual employers to consider, it is questionable as to whether failure to do so could be considered discriminatory under one of the nine grounds protected by the Employment Equality Acts 1998 to 2015.

It is worth remembering that remuneration is excluded from the protections of legislation for the duration of maternity leave, so it is a matter for the individual employer and employee to agree through the contract of employment the extent to which (if any) maternity benefit will be topped up. It is not unusual for an employer to top up the benefit, but not for the full 26 week period. Therefore, failure or refusal to top up this proposed additional leave is unlikely to create a legal difficulty for employers, unless the decision was based on a discriminatory reason as referred to above. Companies are advised to examine wording of their own policies and procedures relating to maternity leave to examine the impact, if any, of the new measure on their business.

Ibec recognises that the measure proposed will assist new parents in caring for their prematurely born children, some of whom may have associated health difficulties. For this reason alone, the proposal is welcome. It may also have the effect of allowing new mothers of premature babies to return to work in a better position than would previously have been the case where much of their leave may have been preoccupied with caring for a sick infant.

Ibec will review the draft legislative proposals as soon as they are available and will keep members updated on any developments. For further queries, please contact your Ibec advisor at 01 605 1500.

Wednesday, 4 October 2017