Maternity Leave and Returning to Work

Linda Hynes, employment law solicitor with Ogier Leman has agreed to write a monthly feature for Legal-Island email subscribers providing handy precedents and checklists for subscribers to download and use.

This month’s topic focuses on maternity leave.

There have been several cases recently where employers have been held to have unfairly or discriminatorily dismissed a employee by terminating their employment while on maternity leave or not allowing an employee to return to work after their maternity leave. Some of these decisions have attracted high awards – most notably the award against O’Callaghan Hotels of €315,000 by the Equality Tribunal.

It is always prudent to try and agree the various periods of leave an employee intends to take before they go on maternity leave. This helps both the employee and the employer to understand when the employee anticipates returning to work and reminds the employee of the notification requirements they have. Maternity leave can be a stressful time for employees if they are not properly managed and communicated with. To assist employers with this process, Linda Hynes of Ogier Leman has prepared a template maternity leave confirmation letter to be used by employers before an employee takes a period of maternity leave.

An employee dismissed for pregnancy or maternity related reasons can take a case under either the Unfair Dismissal legislation or the Employment Equality legislation. The selection of a woman for redundancy because she is pregnant or will be taking maternity leave would be held as a dismissal connected to her pregnancy and therefore an automatically unfair dismissal. The Maternity Protection Act 1994 provides, among other matters, that any purported termination of a woman’s employment or notice of termination while she is absent from work on basic or additional maternity leave, absent for breastfeeding or natal care purposes, health and safety leave or attendance at ante-natal classes is void. The one year service requirement which usually applies under the Unfair Dismissal legislation does not apply to employees dismissed for pregnancy, giving birth or breast feeding or any connected matters.

It is important to note that notice of redundancy given to an employee who is on maternity leave is void. Where an employee has been given notice of redundancy prior to commencing maternity leave, the notice period cannot run during the period of her maternity leave. The notice will be suspended for the period of maternity leave and will start again at the end of the maternity leave period. Employers should be extremely cautious when selecting a pregnant employee for redundancy and the selection criteria should clearly show that the selection is not in any way connected to her pregnancy. This can be a difficult matter to evidence before the EAT or the Equality Tribunal when faced with a claim.

Click here to access the maternity leave confirmation letter.


This publication is for guidance purposes only. It does not constitute legal or professional advice. No liability is accepted by Ogier Leman for any action taken or not taken in reliance on the information set out in this publication. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. Any and all information is subject to change.

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