Willie O'Dea (Limerick East, Fianna Fail)

It is necessary for legal reasons for the employee to choose to take resumed leave or to forfeit that leave. The directive on pregnant workers prohibits the dismissal of an employee from the beginning of her pregnancy to the end of her maternity leave, save in exceptional circumstances not connected with the employee's condition. The Maternity Protection Act 1994 extends this protection to the end of the additional maternity leave period. The European Court of Justice has held in a series of cases that "the dismissal of a female worker on account of pregnancy, or essentially, on account of pregnancy can affect only women and therefore constitutes direct discrimination on grounds of sex". An employee is therefore protected from dismissal in respect of pregnancy-related sick leave from the beginning of the pregnancy to the end of the maternity leave period.

It was felt necessary to include in the Bill a mechanism to deal with a situation where an employee falls ill after she has returned to work on a temporary basis. She must resume her maternity and-or additional maternity leave, as appropriate, or forfeit the right to the leave. Otherwise, due to the legal protection in place up to the end of additional maternity leave, employers will not allow employees to postpone or split their maternity leave due to the risk of potentially extending maternity protection for the duration of a prolonged period of sick leave.

Section 6(6) is constructed so that an employee who has returned to work temporarily due to the hospitalisation of her child, who is then absent from work due to sickness, must at the time she notifies her employer of her illness in the normal way also indicate she is taking sick leave. Otherwise, she will be automatically deemed to be on resumed maternity leave. This construction leaves the option with the employee of choosing either resumed maternity leave or sick leave.