Hi Deliah
I have just posted this on another forum in the hope that the information may be help to pregnant women who are being made redundant. I will just paste it in below here. My wife went through a similar situation recently and it has all worked out well for us. I stress again, we are not lawyers, just use this for info.
Best of luck.
Bubbles99
There seems to be so many pregnant women who are being made redundant and who are unsure of what they should do about maternity leave entitlements that I wanted to post up about my wife's recent experience as it may be helpful for others.
We found bulletin boards confusing and found it difficult to figure out what my wife's entitlements were. Please note neither my wife nor I are lawyers, but we did look up the relevant legislation on
www.irishstatutebook.ie and after reading it then talked to a Solicitor. If you find that your situation is similar to my wife's, please just use our situation as a guide, do not rely on what I have said below, just use the information to get a better understanding of your position and then go talk to a Solicitor who knows about emloyment law.
What we wanted to achieve was that my wife would be paid her full maternity leave entitlements.
The legislation that we looked at was the Maternity Protection Act 1994 and the Maternity Protection (Amendment) Act 2004. Search for 'maternity' on irishstatutebook.ie and it will throw them up. There may be other legislation involved, we just looked at these.
My wife was told she was on a provisional list for redundancy (she was 5 months pregnant). Formal notice of redundancy was not due to issue to affected employees for another month or so after the provisional list was announced.
What did we do; My wife went on maternity leave 'early' and will now be made redundant from the end of her maternity leave.
Typically, women go on mat leave about 2 weeks before their due date. However, by law, of your 26 weeks maternity leave, you must take 2 weeks before your 'expected week of confinment' ("EWC") and you must take 4 weeks after your EWC. (Section 10 of the 1994 Act). Other than these 6 required weeks, you are legally entitled to go on mat leave up to 20 weeks before your EWC.
By law, your entitlement to maternity leave depends on the woman "
as soon as reasonably practical, but not later than 4 weeks before the commencement of maternity leave" notifying her employer in writing of her intention to take maternity leave, (Section 9 of the 1994 Act). The phrase 'as soon as reasonably practical' is not a defined term so it means simply what it says.
When on maternity leave or on additional maternity leave you are legally considered to be on "
Protective Leave" (Section 21 of the 1994 Act).
Any '
purported termination' of employment or any '
notice of termination of employment' given whilst on Protective Leave is void - Section 23 of the 1994 Act. This is the section which protects you from being made redundant if already on maternity leave.
If you are given notice of redundancy before you have issued your employer with formal notice of going on maternity leave, you may still be entitled to 'go on maternity leave'. Section 24 of the 1994 Act provides that if you are given notice of redundancy and the notice is due to expire when you are on maternity leave, that the notice period shall be extended by the period of time that you are on maternity leave. This is a bit tricky so I will put an example on it; You get notice of redundancy today (day 1). You immediately give your employer written notice of your intention to go on maternity leave in 4 weeks time (see above). If you have between 5 and 10 years service you must be given 4 weeks notice. If you have more than 10, then its 6 weeks. Between 2 and 5 years you are only entitled to 2 weeks notice (so this may not be relevant for you). So, if you have 5 years or more of service, you will have gone on maternity leave by the time your notice of redundancy expires. Once on maternity leave you are on Protective Leave and cannot be made redundant, with the balance of your notice period running out at the other end of your maternity leave. Employers seem to get people to sign away their notice periods and pay them upfront - if you do sign any such waiver of the notice period you will be redundant before you go on maternity leave - so basically dont sign the waiver of notice period. Obviously, if you have less than 5 years service this is not probably relevant unless your employer gives you more notice than the statutory minimum of 2 weeks. Also, I appreciate there is a 'technical' argument about 4 weeks notice of termination and 4 weeks notice of going on mat leave... if they all expired on the same day..... get legal advice, this was not an issue in our situation.
My wife went on maternity leave before notice of redundancy was formally issued, is being paid her maternity leave and will be made redundant at the end of her mat leave.
In relation to State Maternity Benefit - her company pays her salary less SMB. Even if you go on maternity leave early you may still be entitled to SMB. My wife spoke to the maternity benefits section in the Welfare department in Letterkenny who were extremely helpful. The state will pay SMB for up to 26 weeks, but will only pay a max of 16 weeks before your due date. So, although legally you can go on maternity leave up to 22 weeks before your due date, you will only be paid SMB from 16 weeks before. If you went on mat leave this 'early' you would only have 4 weeks maternity leave to run after your due date. In such a case, SMB will only be paid for those remaining 4 weeks of maternity leave and not 10 - so you effectively forego 6 weeks of SMB. To get SMB you must be in employment the day before you go on maternity leave & meet certain PRSI contributions. When you are on maternity leave you are still employed for the duration of your maternity leave, so you are def in employment the day before you go on mat leave.
That's all I can think of that is relevant at the moment. Hopefully the above is helpful in outlining what a woman is entitled to do in relation to maternity leave. Obviously, it all very much depends on the circumstances of each person, how long you have been with your company, what the company's policy on maternity benefits is etc etc etc. However, its good to get informed as we found that HR departments are not really aware of the details of the law any more than we were. Just dont sign anything until you have checked out all your options.
Very best of luck to anyone in this situation, its extremely stressful, but hopefully if you have some assurances that you may be entitled to paid maternity leave it will relieve some of the stress.
