Adoptive Leave Act 2005

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Section

1.

Definitions.

2.

Amendment of section 2 of Principal Act.

3.

Amendment of section 6 of Principal Act.

4.

Amendment of section 8 of Principal Act.

5.

Amendment of section 9 of Principal Act.

6.

Amendment of section 10 of Principal Act.

7.

New section 11A to Principal Act.

8.

New section 11B to Principal Act.

9.

New section 11C to Principal Act.

10.

New section 11D to Principal Act.

11.

Amendment of section 12 of Principal Act.

12.

Substitution of section 15 of Principal Act.

13.

Substitution of section 16 of Principal Act.

14.

Substitution of section 17 of Principal Act.

15.

Substitution of section 18 of Principal Act.

16.

Amendment of section 19 of Principal Act.

17.

Amendment of section 20 of Principal Act.

18.

Amendment of section 23 of Principal Act.

19.

Amendment of section 24 of Principal Act.

20.

Substitution of section 28 of Principal Act.

21.

New section 45 to Principal Act.

22.

Short title, collective citation and commencement.

Acts Referred to

Adoptive Leave Act 1995

1995, No. 2

Defence Act 1954

1954, No. 18

Defence (Amendment) (No. 2) Act 1960

1960, No. 44

Redundancy Payments Act 1967

1967, No. 21

Redundancy Payments Act 2003

2003, No. 14

Social Welfare Acts

Unfair Dismissals Act 1977

1977, No. 10

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

6.—(1) Subject to this Part, an employed adopting mother (or sole male 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.”.

“Time off to attend certain pre-adoption classes and meetings.

11A.—(1) Subject to subsections (2) and (3), an employee shall be entitled to time off from work, without loss of pay, to attend any pre-adoption classes and meetings which the employee is obliged to attend.

(2) Subsection (1) shall not apply—

(a) to a member of the Defence Forces who is—

(i) on active service within the meaning of section 5 of the Defence Act 1954 or deemed to be on active service within the meaning of section 4 (1) of the Defence (Amendment)(No. 2) Act 1960 ,

(ii) engaged in operational duties at sea,

(iii) engaged in operations in aid of the civil power,

(iv) engaged in training that is directly associated with any of the activities referred to in subparagraphs (i), (ii) and (iii) of this paragraph, or

(v) engaged in any other duty outside the State,

(b) if the Chief of Staff of the Defence Forces in exceptional circumstances so directs, to a member of the Defence Forces who is required to perform a duty which is, in the opinion of the Chief of Staff of the Defence Forces, of a special or urgent nature for so long as the member is performing the duty,

(c) to a member of the Garda Síochána who is on the direction, or with the consent, of the Commissioner of the Garda Síochána serving outside the State and performing duties of a police character or advising others on, or monitoring them in, the performance of such duties or any related duties for so long as the member is so serving, and

(d) if the Commissioner of the Garda Síochána in exceptional circumstances so directs, to a member of the Garda Síochána who is required to perform a duty which is, in the opinion of the Commissioner of the Garda Síochána, of a special or urgent nature for so long as the member is performing the duty.

(3) (a) In this subsection ‘classes’ refers to the pre-adoption classes and meetings mentioned in subsection (1).

(b) The entitlement of an employee to time off under subsection (1) is subject to his or her having—

(i) notified the employer in writing of the dates and times of the classes concerned, or the date and time of each class, as soon as practicable but not later than 2 weeks before the date of the first class, or the class concerned, as the case may be, and

(ii) produced to the employer, on request, an appropriate document indicating the dates and times of the classes, or the date and time of the class, concerned.

(c) Where the circumstances are such that, in the case of a particular class, non-compliance by the employee with paragraph (b) is not due to any neglect or default by the employee in relation to attendance at the class, the employee is deemed to have complied with the requirements of that paragraph if, not later than one week after the date of the class concerned, he or she provides the employer with evidence of the attendance and an indication of the circumstances which gave rise to the non-compliance.

(4) References in this section to pre-adoption classes and meetings are references to such classes and meetings held within the State.”.

“Termination of additional adoptive leave on sickness of adopting parent.

11B.—(1) An adopting parent (‘the employee’)—

(a) who is sick while on adoptive leave or while entitled to, or on, additional adoptive leave, and

(b) who wishes to terminate the additional adoptive leave,

may request the employer in writing to terminate the additional adoptive leave or cause such a request to be made.

(2) If the employer agrees to terminate the leave, it shall terminate on a date agreed by the employee and the employer that is—

(a) not earlier than the date on which the sickness began, and

(b) not later than the date on which the leave would have ended in accordance with the notification of intention to take it given by the employee to the employer under this Part or section 41, as the case may be.

(3) The employer shall notify the employee of the decision on the request as soon as is reasonably practicable after its receipt.

(4) On the termination of the additional adoptive leave—

(a) the absence from work of the employee owing to sickness after the termination shall be treated in the same way as any other absence from work of the employee owing to sickness, and

(b) the employee shall cease to be entitled to any leave not by then taken.”.

“Postponement of leave on hospitalisation of child.

11C.—(1) If—

(a) an adopted child is in hospital, and

(b) the child's adopting parent (‘the employee’) is entitled to, or is on, adoptive leave or additional adoptive leave,

the employee may request the employer in writing (or cause such a request to be made) to postpone in accordance with this section—

(i) the whole of the adoptive leave and any additional adoptive leave,

(ii) the part of the adoptive leave not by then taken and any additional adoptive leave, or

(iii) the whole of the additional adoptive leave or any part not by then taken,

as appropriate.

(2) If the employer agrees to the request—

(a) the employee shall continue to work or, as the case may be, shall return to work on a date agreed by the employee and employer that is not later than the date on which the leave concerned is due to end in accordance with the notification given under section 7 or (as the case may be) given, or deemed under subsection (5) to have been given, under section 8(3),

(b) the leave concerned shall be postponed or, as the case may be, postponed with effect from the date agreed under paragraph (a),

(c) the employee shall be entitled in accordance with this section to the leave or the part of the leave not taken by reason of the postponement (in this Act referred to as ‘postponed leave’), and

(d) the postponed leave shall be taken as a continuous period beginning not later than 7 days after the child is discharged from hospital or such other date as may be agreed between the employer and the employee.

(3) The employer shall notify the employee concerned in writing of the decision on the request as soon as is reasonably practicable after its receipt.

(4) (a) Subject to subsection (6), entitlement to postponed leave shall be subject to the employee having notified the employer in writing (or having caused the employer to be so notified) of the employee's intention to take the leave.

(b) The notification shall be given by the employee as soon as is reasonably practicable after the employee becomes aware of the date of the child's discharge from hospital.

(c) The notification may be revoked by a further notification in writing given by or on behalf of the employee to the employer.

(5) Notwithstanding that an employee who is on adoptive leave has not caused the employer to be notified in accordance with section 8(3) of his or her intention to take additional adoptive leave, the employee shall be deemed, for the purposes of paragraph (ii) or (iii) of subsection (1), to have done so.

(6) An employer may waive the right to receive a notification in accordance with subsection (4).

(7) The employer may require the employee to supply evidence of the child's hospitalisation and discharge from hospital.”.

“Absence from work owing to sickness while leave postponed.

11D.—(1) Where—

(a) an employee whose request to postpone leave has been agreed by the employer continues to work or, as the case may be, returns to work in accordance with section 11C(2)(a), and

(b) is absent from work owing to sickness while the leave is postponed,

the employee shall be deemed to begin the postponed leave on the first day of the absence unless the employee notifies the employer in writing (or causes the employer to be so notified) as soon as is reasonably practicable that the employee does not wish to begin the postponed leave.

(2) On any such notification—

(a) the absence from work of the employee owing to sickness shall be treated in the same way as any other absence from work of the employee owing to sickness, and

(b) the employee shall cease to be entitled to the postponed leave.”.

“Preservation or suspension of certain rights, etc., while on adoptive leave.

15.—(1) While absent from work on adoptive leave, an employee—

(a) shall be deemed to have been in the employment of the employer, and

(b) shall, subject to subsection (6) and section 17, be treated as if the employee had not been so absent,

and the absence shall not affect any right of the employee related to the employment (other than the right to remuneration during the absence), whether conferred by statute, contract or otherwise.

(2) While absent from work on additional adoptive leave an employee—

(a) shall be deemed to have been in the employment of the employer, and

(b) shall, subject to subsection (6) and section 17, be treated as if the employee had not been so absent,

and the absence shall not affect any right or obligation related to the employee's employment (other than the employee's right to remuneration or superannuation benefits or any obligation to pay contributions in or in respect of the employment during the absence), whether conferred or imposed by statute, contract or otherwise.

(3) While absent from work attending pre-adoption classes or meetings in accordance with section 11A, an employee—

(a) shall be deemed to be in the employment of the employer, and

(b) shall, subject to subsection (6) and section 17, be treated as if the employee had not been so absent,

and the absence shall not affect any right related to the employee's employment, whether conferred by statute, contract or otherwise.

(4) Nothing in this section shall affect the right of an employee to be offered suitable alternative employment under section 19.

(5) A period of absence from work in accordance with this Act shall not be treated as part of any other leave (including sick leave or annual leave) to which an employee is entitled.

(6) Where, on starting employment, an employee is on probation, is undergoing training in relation to it or is an apprentice, the probation, training or apprenticeship shall stand suspended during any absence from work in accordance with this Act and shall be completed by the employee on returning to work after the absence.

(7) An employee shall be deemed not to be an employed contributor for the purposes of the Social Welfare Acts for any contribution week (within the meaning of those Acts) while absent from work on adoptive leave or additional adoptive leave if the employee does not receive any reckonable earnings (within that meaning) in respect of that week.

(8) The Minister may by regulations prescribe a period or periods of training in relation to which subsection (6) shall not apply.”.

“Voidance of certain purported terminations of employment, etc.

16.—Each of the following shall be void:

(a) any purported termination of or suspension from employment of an adopting parent while absent from work—

(i) on adoptive leave or additional adoptive leave, or

(ii) attending pre-adoption classes or meetings in accordance with section 11A;

(b) any notice of termination of the employment of an adopting parent given during the parent's absence from work—

(i) on adoptive leave or additional adoptive leave, or

(ii) while attending pre-adoption classes or meetings in accordance with that section,

and expiring after the absence.”.

“Extension of certain notices of termination of employment and certain suspensions.

17.—(1) This section applies to—

(a) a notice of termination of employment, or

(b) a suspension from employment,

which is given to or imposed on an adopting parent before the adopting parent begins a period of leave under this Act and which is due to expire during the adopting parent's absence from work on that leave.

(2) Any notice of termination or any suspension to which this section applies shall be extended by the period of the absence concerned.

(3) References in subsection (1) to a period of leave under this Act include references to a period of time off from work while attending pre-adoption classes or meetings in accordance with section 11A.”.

“General right to return to work after adoptive leave or additional adoptive leave.

18.—(1) An adopting parent (‘the employee’) who is absent from work while on adoptive leave or additional adoptive leave shall be entitled to return to work—

(a) either—

(i) with the employer with whom the employee was working immediately before the absence, or

(ii) if during the absence there was a change of ownership of the undertaking in which the employee was employed immediately before the absence, with the owner (in this Act referred to as ‘the successor’) of the undertaking when the absence ended,

(b) in the job which the employee held immediately before the absence began, and

(c) under the contract of employment under which the employee was employed immediately before the absence began, or (as the case may be) under a contract of employment with the successor, which is identical to the contract under which the employee was employed immediately before the absence and (in either case) under terms or conditions—

(i) that are not less favourable than those that would have been applicable, and

(ii) that incorporate any improvements in the terms and conditions of employment to which the employee would have been entitled,

if the employee had not been so absent from work.

(2) For the purposes of subsection (1)(b), where the job held by the employee immediately before the absence was not the employee's normal or usual job, the employee shall be entitled to return to work, either in the normal or usual job or in the job so held, as soon as is practicable.

(3) In this section, ‘job’ means the nature of the work which the employee is employed to do in accordance with the employee's contract of employment and the capacity and place in which the employee is so employed.”.

“Amendment of Schedule 3 to Redundancy Payments Act 1967.

28.— Schedule 3 to the Redundancy Payments Act 1967 is amended—

(a) in paragraph 5 (absences from work which do not breach continuity of employment) (substituted by section 12 (a) of the Redundancy Payments Act 2003 ), by substituting the following subparagraph for subparagraph (b):

‘(b) a period during which, in accordance with the Adoptive Leave Acts 1995 and 2005, an adopting parent was absent from work while on adoptive leave or additional adoptive leave or while attending certain pre-adoption classes or meetings,’,

and

(b) in paragraph 8A (absences allowable as reckonable service) (inserted by section 12(b) of the said Act of 2003), by substituting the following subparagraph for subparagraph (a):

‘(a) a period during which, in accordance with the Adoptive Leave Acts 1995 and 2005, an adopting parent was absent from work while on adoptive leave or additional adoptive leave or while attending certain pre-adoption classes or meetings,’.”.

“Revocation.

45.—The Adoptive Leave Act 1995 (Extension of Periods of Leave) Order 2001 ( S.I. No. 30 of 2001 ), so far as unrevoked, and the Adoptive Leave Act 1995 (Extension of Periods of Leave) Order 2004 ( S.I. No. 667 of 2004 ) are revoked.”.