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Proposed Shared Maternity Leave Not Properly Thought Out

The Shared Maternity Leave and Benefit Bill 2018 (the “Bill”), which was introduced on 12th July 2018, seeks to provide a new right to Shared Maternity Leave by the parents of an expected or newborn child. Specifically, the Bill proposes to allow both parents of the child to take the maternity leave at the same time and share the State Maternity Benefit. This is regardless of whether or not both parents work for the same employer.

Although the Bill is only at the First Stage, it simply states that Shared Maternity Leave will be treated in the same way as Paternity Leave insofar as section 31 of the Paternity Leave and Benefit Act 2016 applies. Therefore, the parents which can avail of the Shared Maternity Leave are those as defined as “Relevant Parent” under the Paternity Leave and Benefit Act 2016. This definition has yet to include parents of a donor-assisted pregnancy.

The Bill proposes to share an already existing statutory entitlement to Maternity Leave and therefore, it will not affect Paternity Leave or Parental Leave, which are separate entitlements. Unlike Parental Leave, there appears to be no provision for a situation where both the mother and Relevant Parent are employed by the same employer.

While there is no statutory provision which places an obligation on an employer to pay an employee during Maternity Leave or Shared Maternity Leave, employers who do pay enhanced maternity pay will need to be mindful as to whether such maternity pay will be extended to a Relevant Parent in respect of Shared Maternity Leave. The question may arise again as to whether an employer’s refusal to extend enhanced maternity pay to a Relevant Parent during Shared Maternity Leave amounts to discrimination or positive discrimination. Previous case law afforded special protection to women on maternity leave and held that it was not discriminatory for an employer to pay enhanced Maternity Leave and not pay Paternity Leave. However, this argument may be diluted by the fact that the parties are on Shared Maternity Leave for the same purpose.

31st July 2018

Anne O’Connell
1-3 Burton Hall Road
Dublin 18

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