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34 1994

MATERNITY PROTECTION ACT, 1994

PART IV

Employment Protection

Interpretation of Part IV .

21. —(1) In this Part—

natal care absence”, in relation to an employee, means a period of absence from her work to which the employee is entitled in accordance with regulations under section 15 ; and

protective leave” means—

(a) maternity leave;

(b) additional maternity leave;

(c) leave to which a father is entitled under subsection (1) or subsection (4) of section 16 ; or

(d) leave granted under section 18 .

(2) Where protective leave of one description is immediately followed by protective leave of another description, the time on leave shall be treated for the purposes of this Part as one continuous period of protective leave.

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

22. —(1) During a period of absence from work by an employee while on—

(a) maternity leave,

(b) subsection (1) (a) leave, as defined in section 16 (3), or

(c) leave granted under section 18 ,

and during a period of natal care absence, the employee shall be deemed to have been in the employment of the employer and, accordingly, while so absent the employee shall, subject to subsection (6) and section 24 , be treated as if she had not been so absent; and such absence shall not affect any right (other than, except in the case of natal care absence, the employee's right to remuneration during such absence), whether conferred by statute, contract or otherwise, and related to the employee's employment.

(2) In respect of a period of absence from work by an employee while on—

(a) additional maternity leave,

(b) subsection (1) (b) leave, as defined in section 16 (3), or

(c) further leave under section 16 (4),

the period of employment before such absence shall be regarded as continuous with the employee's employment following such absence in respect of any right (other than the right to remuneration during such absence) whether conferred by statute, contract or otherwise, and related to the employee's employment.

(3) Nothing in this section affects—

(a) an employee's right to be offered suitable alternative employment under section 27 ; or

(b) an employee's right to remuneration in accordance with section 18 (4).

(4) A period of absence from work while on protective leave shall not be treated as part of any other leave (including sick leave or annual leave) to which the employee concerned is entitled.

(5) An employee shall be deemed not to be an employed contributor for the purposes of the Social Welfare (Consolidation) Act, 1993 , for any contribution week (within the meaning of that Act) in a period of absence from work on protective leave if the employee does not receive any reckonable earnings (within the meaning of that Act) in respect of that week.

(6) Where subsection (1) applies during a period of absence by an employee while she is on leave granted under section 18 , nothing in this section shall entitle her to benefits under section 4 of the Holidays (Employees) Act, 1973 in respect of a public holiday (within the meaning of that Act) falling during that period of absence.

Voidance of certain purported terminations of employment, etc.

23. —Each of the following shall be void:

(a) any purported termination of an employee's employment while the employee is absent from work on protective leave;

(b) any purported termination of an employee's employment during a period of natal care absence;

(c) any notice of termination of an employee's employment given while the employee is absent from work on protective leave and expiring subsequent to such a period of absence;

(d) any notice of termination of an employee's employment given during a period of natal care absence and expiring subsequent to such a period;

(e) any purported suspension from an employee's employment imposed while the employee is absent from work on protective leave, or during a period of natal care absence.

Extension of certain notices of termination of employment or of certain suspensions.

24. —Any notice of termination of employment given in respect of an employee or any suspension from employment imposed on an employee—

(a) before the receipt by the employee's employer of a notification under section 9 , 12 , 14 , 15 or 16 (or, where appropriate, under section 28 ), or

(b) before the production for the employer's inspection of a certificate under section 11 ,

and due to expire during the employee's absence from work on protective leave or (as the case may require) during a period of natal care absence shall be extended by the period of absence from work on protective leave or, as the case may be, the period of natal care absence.

Provisions regarding periods of probation, training and apprenticeship.

25. —(1) During an employee's absence from work while on protective leave, being an employee who, starting with the commencement of her employment with the employer—

(a) is on probation in that employment, or

(b) is undergoing training in relation to that employment, or

(c) is employed under a contract of apprenticeship,

the probation, training or apprenticeship shall stand suspended during such absence and shall be completed by the employee on her return to work after such absence.

(2) The Minister may by regulations prescribe a period or periods of training in relation to which subsection (1) shall not apply.

General right to return to work on expiry of protective leave.

26. —(1) Subject to this Part, on the expiry of a period during which an employee was absent from work while on protective leave, the employee shall be entitled to return to work—

(a) with the employer with whom she was working immediately before the start of that period or, where during the employee's absence from work there was a change of ownership of the undertaking in which she was employed immediately before her absence, with the owner (in this Act referred to as “the successor”) of the undertaking at the expiry of the period of absence,

(b) in the job which the employee held immediately before the start of that period, and

(c) under the contract of employment under which the employee was employed immediately before the start of that period, or, where a change of ownership such as is referred to in paragraph (a) has occurred, under a contract of employment with the successor which is identical to the contract under which the employee was employed immediately before the start of that period, and (in either case) under terms or conditions not less favourable than those that would have been applicable to the employee if she had not been so absent from work.

(2) For the purposes of subsection (1) (b), where the job held by an employee immediately before the start of the period of her absence on protective leave was not the employee's normal or usual job, the employee shall be entitled to return to work, either in her normal or usual job or in that job as soon as is practicable without contravention by the employee or the employer of any provision of a statute or instrument made under statute.

(3) In this section “job”, in relation to an employee, means the nature of the work which she is employed to do in accordance with her contract of employment and the capacity and place in which she is so employed.

Right to suitable alternative work in certain circumstances on return to work.

27. —(1) Where an employee is entitled to return to work in accordance with section 26 but it is not reasonably practicable for the employer or the successor to permit the employee to return to work in accordance with that section, the employee shall, subject to this Part, be entitled to be offered by the employer, the successor or an associated employer suitable alternative work under a new contract of employment.

(2) Work under a new contract of employment constitutes suitable alternative work for the purposes of this Act if—

(a) the work required to be done under the contract is of a kind which is suitable in relation to the employee concerned and appropriate for the employee to do in the circumstances; and

(b) the terms or conditions of the contract relating to the place where the work under it is required to be done, the capacity in which the employee concerned is to be employed and any other terms or conditions of employment are not substantially less favourable to the employee than those of her contract of employment immediately before the start of the period of absence from work while on protective leave.

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

(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.

Notification of intention to return to work.

28. —(1) Entitlement to return to work in accordance with section 26 or to be offered suitable alternative work under section 27 shall be subject to an employee who has been absent from work while on protective leave in accordance with this Act having, not later than four weeks before the date on which she expects to return to work, notified in writing (or caused to be so notified) the employer or, where the employee is aware of a change of ownership of the undertaking concerned, the successor, of her intention to return to work and of the date on which she expects to return to work.

(2) Where, in the opinion of a rights commissioner or the Tribunal, there are reasonable grounds—

(a) for an employee's failure to give notification under subsection (1), or

(b) for an employee giving such notification otherwise than within the specified time limits,

the rights commissioner or the Tribunal, as the case may be, shall extend the time for giving the notification.

(3) In the absence of reasonable grounds—

(a) failure to give notification under subsection (1), or

(b) the giving of such notification otherwise than within the specified time limits,

are matters that may be taken into account by a rights commissioner, the Tribunal or the Circuit Court in determining the employee's rights under the 1977 Act, this Act or any other relevant enactment, so far as the remedies of re-instatement, re-engagement or compensation are concerned.

Postponement of return to work.

29. —Where, because of an interruption or cessation of work at an employee's place of employment, existing on the date specified in a notification under section 28 given by the employee, it is unreasonable to expect the employee to return to work on the date specified in the notification, the employee may return to work instead when work resumes at the place of employment after the interruption or cessation, or as soon as reasonably practicable after such resumption.