Complainant

Respondent

Parties

Elizabeth O'Reilly

Avista CLG

Representatives

Chris Harrison, Fórsa

Peter Gilfedder, IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00052897-001

16/09/2022

The complainant is a social care worker and she has worked for the respondent since October 2002.  The respondent provides housing and support to adults and children with intellectual disabilities and complex needs.  They have 38 houses and 303 employees in Dublin, Limerick and Tipperary.  For all her 20 years with the organisation, the complainant has worked in a house in Dublin caring for three ladies with intellectual disabilities.  She has three children, aged 6, 10 and 11.

This complaint relates to the challenges the complainant has faced trying to take parental leave.

Mr Harrison made a formal submission setting out the complainant’s case.  The complainant provided me with a copy of her roster, which is based on a rolling schedule of 117 hours over three weeks.  She said that she knows her roster for the year ahead. 

The complainant had her first child in 2011 and in 2014, she applied for parental leave for the first time.  This was for parental leave to be taken in 2015.  It was agreed that she would take the leave for eight hours a week for 62 weeks. 

In 2017, the complainant said that she applied for parental leave in one block of leave during the summer, but this was refused.  She applied again in 2017 for leave in the summer of 2018, and her application was again refused.  She provided a copy of a memo from the service manager at the time, telling her that the reason for the refusal was because she would have to be replaced by agency staff.  In February 2018, she submitted a complaint to the WRC, and the parties engaged in mediation.  The complainant said that the mediation produced no outcome and the mediator put the issue back to the adjudication service.

In 2019, the complainant said that she applied to take parental leave by reducing her hours each week, but this request was refused.  In January 2020, the complainant said that her application to take parental leave in April and May 2020 was refused and, in February 2020, she submitted a second complaint to the WRC.  The parties engaged in mediation again and the complainant said that she was asked to indicate her plans for parental leave over the following five years.  She said that she felt that she should have been entitled to apply for the leave on a single year basis.  There was no outcome from the mediation and an adjudication hearing was scheduled.  However, on October 14th 2020, she withdrew her complaint when she was granted six weeks’ parental leave in August and September 2021.

In October 2021, the complainant applied for seven weeks’ parental leave in the summer of 2022.  Consideration of her application was delayed because the service manager was due to retire and she wanted to leave the approval to her replacement.  The delay was also caused by staff shortages in the HR department.  The complainant was out sick for three weeks due to stress in February 2022.  On February 22nd, she was informed that she could not take a block of leave during the summer, because of the requirement to ensure that all employees get two weeks off in July and August.  Eventually, she was she was permitted to take parental leave in the summer of 2022, not in a block of time off, but based on her reducing her hours to 19.5 hours a week for 14 weeks.  She has applied for parental leave in the summers of 2023, 2024 and 2025, based on a block of seven weeks’ leave or a reduction in weekly hours to 19.5 hours each week for 10 weeks.

At the hearing, I asked the complainant what outcome she was looking for from this hearing.  She said that she wanted to be able to take her entitlement to parental leave without having to involve her union and management and without having to submit complaints to the WRC.

For the respondent, Mr Gilfedder provided a comprehensive submission setting out the background to the complainant’s concerns about her parental leave applications and the employer’s efforts to respond.  Included in the submission is a table setting out the complainant’s entitlement to parental leave and the amount of leave already taken.  In respect of the complainant’s eldest child, she has been granted 1,003 hours of parental leave out of an entitlement to 1,014 hours.  There remains an entitlement to 1,014 hours for each of her two younger children.   On August 5th 2022, the complainant applied for parental leave for the summer of 2023, 2024 and 2025, based on a block of leave for seven weeks or a shift of 19.5 hours for 10 weeks.  On August 30th, the HR manager, Mr Martin, met the complainant and confirmed that he and the service manager would commit to replying in writing to the complainant’s request for parental leave in the summers of 2023, 2024 and 2025 by April 30th each year.

On February 11th 2022, the complainant had submitted a complaint to the WRC under the Parental Leave Act and a hearing was scheduled for September 15th that year.  The claims were withdrawn at the hearing.  The following day, the complainant submitted another complaint to the WRC, which is the complaint now being considered.

At a meeting on February 3rd 2023, the HR manager, Mr Martin and the residential services manager, Ms O’Keeffe, met the complainant over Zoom.  Mr Martin explained that they would respond to the complainant’s application for parental leave by the end of April.  The complainant was firm in her wish to take the leave in a block of seven weeks during the summer.  She said that she wanted to proceed with the hearing at the WRC because, in 2021, she only got her parental leave when she complained to the WRC and in 2022, she did not get the leave in the format that she requested.

The Respondent’s Position Regarding the Complainant’s Entitlement to Parental Leave

Mr Gilfedder referred to section 8 of the Parental Leave Act, which provides that an employee must give notice of their intention to take parental leave six weeks before the commencement of the leave.  He also referred to the provision at section 9, which provides that, four weeks before the leave is due to start, the employer must give the employee a confirmation document, specifying the commencement of the leave, the duration of the leave and the manner in which it is to be taken.  It is the respondent’s position that, in relation to the complainant’s application for leave commencing on July 11th 2023, it is required to provide the confirmation document on June 12th.  The respondent has committed to confirming to the complainant if her application for parental leave is approved on April 30th each year.

Section 11 of the Act provides that the timing of an employee’s parental leave may be postponed twice if the reason is related to seasonal variations in the volume of work.  In February 2022, the respondent postponed the complainant’s request for parental leave due to seasonal variations.  She was then granted an alternative arrangement for 14 weeks from June to September 2022.

Mr Gilfedder submitted that the respondent has not acted in breach of the complainant’s entitlements under the Parental Leave Act, but that they have acted reasonably in response to her requests for parental leave and have met her on several occasions to support her and to facilitate a solution.  By confirming that they will respond to her request for parental leave in the summers of 2023, 2024 and 2025 by April 30th each year, the respondent is providing more than the notice required under section 9 of the Act. 

In conclusion, Mr Gilfedder said that the respondent values the contribution that the complainant makes to the organisation and wants to work with her to grant her requests for parental leave to her satisfaction and in line with the needs of the service.

The Relevant Law

The Parental Leave Act 1998 transposes into Irish law Council Directive 96/34 of the European Community, the framework agreement on parental leave.  The Directive is the outcome from the deliberations of the social partners at EU level, on ways to support employees to reconcile work and family life.  Section 6(1) of the Act, as amended, provides that,

“… an employee who is a relevant parent in respect of a child shall be entitled to leave from his or her employment, to be known and referred to in this Act as ‘parental leave’, for a period of 18 (since September 2020, 26) working weeks to enable him or her to take care of the child.”

It is clear from this wording that parental leave is an entitlement and, since the Act was passed in 1998, the Oireachtas has seen fit to increase the leave from 14 weeks to 26 weeks, it is considered to be a positive work/life strategy.  It is interesting to note that both parents are entitled to take 26 weeks’ leave, although without pay and without the benefit of a social welfare payment.

The entitlement to take parental leave is further underlined by the language of section 8, which refers to an employee who “proposes to take parental leave” giving “notice in writing of the proposal to his or her employer.”  The Act does not specify that an employee must request parental leave or that they must seek approval for the leave.  They are simply required to give notice in writing.

Section 11(1) of the Act recognises that the timing of parental leave may not always suit the employer’s business: 

“…where an employee has given a notice under section 8(1) to his or her employer and the employer is satisfied that the taking of parental leave at the time specified in the notice would have a substantial adverse effect on the operation of his or her business, profession or occupation by reason of seasonal variations in the volume of the work concerned, the unavailability of a person to carry out the duties of the employee in the employment, the nature of those duties, the number of employees in the employment or the number thereof whose periods, or parts of whose periods, of parental leave will fall within the period specified in the said notice or any other relevant matters, the employer may, by notice in writing given to the employee not later than 4 weeks before the intended commencement of the leave, postpone the commencement of the leave to such time not later than 6 months after the date of commencement specified in the relevant notice under section 8(1) as may be agreed upon by the employer and the employee.”

It is apparent therefore, that the timing of the leave may be postponed and it may be taken not later than six months after the original planned date, as long as the employer and the employee agree.  The requirement for mutual agreement is further underlined at section 10, which recognises that circumstances will arise when it may be necessary to postpone, curtail or vary the parental leave which has been confirmed by a confirmation notice in accordance with section 9.  Section 10(2) provides that,

“…if, after the date of a confirmation document (whether or not the period of parental leave to which it relates has commenced) -

(a) the employer concerned or his or her successor and the employee concerned so agree, the leave or part of it may be postponed to such time as may be so agreed upon, the period of such leave may be curtailed in such manner and to such extent as may be so agreed upon or the form of the leave may be varied in such manner as may be so agreed upon, and in such a case the confirmation document shall be amended accordingly, or”

(b)  - refers to the illness of the employee and is not relevant to the case under consideration here.

The repeated use of the word “agreed” in sub-section (a) above clearly underlines that parental leave may be postponed by agreement between the employer and the employee and that the employer does not have discretion to refuse an employee who gives notice of his or her intention to take parental leave.

Findings

This complaint is about the difficulties encountered by the complainant in her effort to take parental leave at a time that suits her family’s needs.  She has three school-going children and the most practical time to take parental leave is during the school holidays.  While she took parental leave in the summer of 2021, this was facilitated only after she submitted a complaint to the WRC.  Her application for the summer of 2022 was varied, when she proposed an alternative to a block of seven weeks’ leave by working 19.5 hours a week.  Her requests for leave in 2019 and 2020 were not facilitated.

It is interesting to read the introduction to the respondent’s policy on parental leave, in the context of the objective of and the language of the Parental Leave Act.  The objective of the Act is to provide an entitlement to parental leave; however, the respondent’s policy refers to the requirement to submit an application form to a line manager for approval.  Having examined the wording at section 7 of the Act, it is clear that, unless an employee seeks to take parental leave in blocks of less than six weeks, approval is not required and all that is required is for the employee to give their employer notice of their intention to take the leave.

The respondent’s notification form states (at the second bullet point on page 1) that,

“Application for Parental Leave should be approved by your Senior Manager / Service Manager and then submitted to Human Resources for final approval in your Centre of Employment, not later than six weeks before the proposed commencement date under section 8(1) of the Act.”

This requirement for a two-stage approval process is not consistent with the objective of the Act which provides that parental leave is an entitlement.  The Act provides that the employee may avail of their entitlement simply by giving their employer notice of their intention to take parental leave.  It is my view that the wording of the respondent’s documents is misleading and may have the effect of placing a limit on the entitlement to parental leave in the way that it is handled by managers.

I accept that no organisation can countenance a significant cohort of employees taking parental leave during the summer months.  However, no argument was made that the employer was swamped by employees giving notice of their intention to take parental leave and it would appear that the concern is that, during July and August, employees generally take two weeks holidays.  The service-users also go on holidays, and sometimes they are accompanied by staff, placing further pressure on houses where not all the residents go on holidays together.

I accept that there are logistical and capacity issues associated with employees taking parental leave, but, like every other progressive innovation such as maternity leave, employers are required to find ways to enable their employees to balance their family life with their working life.

Section 21 of the Parental Leave Act provides that, in reaching a decision on this matter, I may give directions to the parties as I consider necessary or expedient for the resolution of the dispute. 

I direct the respondent to review its policy on parental leave.  Apart from consideration of a request for parental leave in blocks of less than six weeks, I direct the respondent to remove the reference to “approval” of the leave and to refer only to the requirement of the employee to give notice of their intention to take the leave.

As the complainant has given plenty of notice of her intention to take parental leave in the summer months in 2023, 2024 and 2025, I further direct the respondent to put in place relief cover for the weeks that she will be on leave during those three years.  The respondent’s managers indicated their intention to issue a confirmation notice to the complainant by April 30th 2023, in relation to her leave in the summer of 2023.  No later than June 1st this year (2023) I direct them to issue a confirmation document in relation to the complainant’s notification of her intention to take parental leave in the summers of 2024 and 2025.

Parental leave, timing of leave