Willie O'Dea (Limerick East, Fianna Fail)

We had a long debate about this at the Select Committee on Justice, Equality, Defence and Women's Rights when maternity protection legislation was being discussed. I pointed out a difficulty, namely, that if somebody on additional maternity leave went out sick, it would mean, in accordance with the recommendations of the committee's working group, that provision would have to be made that the maternity leave should terminate. It would mean the person would lose the balance of her maternity leave that was not taken. The reason is that European case law provides that if someone is on leave due to pregnancy, she cannot be sacked until such time as that term has expired. If someone who is on additional maternity leave goes out sick, she can stay out of work indefinitely. She can literally stay out of work, sick, for the rest of her life. As part of the maternity leave has still to be taken, technically, she can still be on maternity leave and so can never be sacked.

That does not apply as regards adoptive leave, but I have two difficulties with the amendment. The first is that our objective is to make the adoptive leave legislation mirror the maternity protection legislation. If we were to accept the amendment, there would be a significant difference. Second, the report produced by the working group was "arrangement by consensus", with give and take on both sides. It arrived at a delicate balance. To suggest an amendment along those lines, even as regards adoptive leave, would, in my view, upset the balance. I will now give the Senator the official response.

The proposed amendment is inconsistent with the recommendation of the maternity review group, which this section of the Bill seeks to apply to adoptive leave, in that it removes subsection (4)(b), which requires untaken leave to be forfeited. The review group recommended that:

In the event of illness, an employee should, subject to the agreement of the employer, be able to transfer from additional maternity leave to sick leave. If an employee transfers from additional maternity leave to sick leave, she will forfeit her right to any additional maternity leave not taken at the date of commencement of the sick leave.

That is taken directly from the working group's report. As Senator Tuffy will be aware, the purpose of the Adoptive Leave Bill is to apply the appropriate outstanding agreed recommendations of the maternity working group to adoptive leave. The social partners agreed to a consultation process and it was formally stated in section 12.2 of the Sustaining Progress partnership agreement. It states clearly and unequivocally that the Bill would provide for "termination of additional adoptive leave in the event of illness subject to the agreement of the employer". To move from this would be a significant departure from the package of compromises agreed.

The provision in section 8 of the Bill as regards termination of additional adoptive leave on the sickness of the adopting parent is consistent with the provision of section 6 of the Maternity Protection (Amendment) Bill 2003, which implements the recommendation of the maternity working group as regards this matter. The basic principle on which this section of the Bill is constructed is to provide an employee with the option, if the employer agrees, to terminate unpaid additional adoptive leave in the event of her illness and to benefit from payment in respect of sick leave, depending, obviously, on the sick leave arrangements available under her contract of employment.