Seanad debates

Thursday, 11 December 2003

Maternity Protection (Amendment) Bill 2003: Report and Final Stages.

 

10:30 am

Tim O'Malley (Limerick East, Progressive Democrats)

Section 7(2) provides that an employee may request to postpone her maternity leave with effect from a date she selects, only if the period of maternity leave concerned taken by her on that day is not less than 14 weeks and that not less than four of those weeks are taken after the end of the week of confinement.

During the debate on Committee Stage the postponement of maternity leave in the event of the hospitalisation of the child was discussed. Senators expressed a view that the postponement provisions were too restrictive in that they may only apply after the employee has availed of 14 weeks maternity leave, not less than four of which are taken after the date of confinement.

During the debate on this issue the legal reasons behind this restriction were outlined. In view of the comments made, I understand the Minister of State, Deputy O'Dea, undertook to look at this matter again to see if anything could be done to improve the situation. Unfortunately, having examined the matter again, the situation is unchanged. European Court of Justice case law is categorical on this issue. In the case of Margaret Boyle and Others v. the Equal Opportunities Commission, the European Court of Justice stated:

Article 8 of Directive 92/85 provides that the period of maternity leave provided for therein must be at least 14 continuous weeks allocated before and/or after confinement.

It follows from the purpose of that provision that the woman cannot interrupt or be required to interrupt her maternity leave, return to work and complete the remaining period of maternity leave later.

In light of the provision of the directive and European Court of Justice case law, there is absolutely no discretion to make provision in national legislation for the postponement or splitting of maternity leave at any stage during the first 14 weeks of maternity leave or during the four weeks post-confinement period. Consequently, I cannot accept the amendment tabled by Senator Tuffy and her colleagues.

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