PART 3

Employment Rights

Protection of employment rights.

13. —(1) An employee who is absent from work on carer's leave shall be regarded as still working in the employment for all purposes relating to his or her employment and none of his or her rights or obligations related to the employment shall be affected by availing of carer's leave other than—

(a) the right to—

(i) remuneration,

(ii) annual leave, except as provided for in subsection (2),

(iii) public holidays, except as provided for in subsection (3), and

(iv) superannuation benefits,

and

(b) any obligation to pay contributions in, or in respect of, the employment.

(2) Section 19 of the Organisation of Working Time Act, 1997 , shall apply to the first 13 weeks of absence from work on carer's leave for each relevant person.

(3) Section 21(1) of the Organisation of Working Time Act, 1997 , shall apply to the first 13 weeks of absence from work on carer's leave for each relevant person and shall not apply to public holidays that occur after such period of absence from work.

(4) Absence from employment while on carer's leave shall not be treated as part of any other leave from the employment (including sick leave, annual leave, adoptive leave, maternity leave, parental leave and force majeure leave) to which the employee concerned is entitled.

(5) Where—

(a) an employee who is on probation in his or her employment or is undergoing training in relation to that employment or is employed under a contract of apprenticeship takes carer's leave, and

(b) his or her employer considers that the employee's absence from employment while on carer's leave would not be consistent with the continuance of the probation, training or apprenticeship,

the employer may require that the probation, training or apprenticeship be suspended during the period of the carer's leave and be completed by the employee at the end of that period.

Return to work.

14. —(1) On the termination of carer's leave in accordance with this Act, the employee concerned shall be entitled to return to work—

(a) with the employer with whom he or she was working immediately before the start of the period or, where during the employee's absence from work there was or were a change or changes of ownership of the undertaking in which the employee was employed immediately before the absence, the owner on the expiration of the period (“the successor”),

(b) in the job that the employee held immediately before the commencement of the period, and

(c) under the contract of employment in respect of which the employee was employed immediately before the commencement of the period or, where a change of ownership such as is referred to in paragraph (a) has occurred, under a contract of employment with the successor, that is identical to the contract under which the employee was employed immediately before such commencement, and (in either case) under terms or conditions not less favourable to the employee than those that would have been applicable to him or her if he or she had not been so absent from work.

(2) For the purposes of subsection (1)(b), where the job held by an employee immediately before the commencement of a period of carer's leave to which he or she is entitled was not the employee's normal or usual job, the employee shall be entitled to return to work, either in that job or in his or her normal or usual job as soon as is practicable without contravention by the employee or the employer of any provision of a statute or provision made under statute.

(3) Where, because of an interruption or cessation of work at an employee's place of employment that exists at the time of the expiration of a period of carer's leave taken by the employee, it is unreasonable to expect the employee to return to work on such expiration, the employee may return to work instead when work resumes at the place of employment after the interruption or cessation, or as soon as reasonably practicable after such resumption.

Right to alternative employment.

15. —(1) Where an employee is entitled to return to work pursuant to section 14 but it is not reasonably practicable for the employer to permit the employee to return to work in accordance with that section, the employee shall be entitled to be offered by his or her employer suitable alternative employment under a new contract of employment.

(2) Work under a new contract of employment constitutes suitable alternative work for the purposes of this Act if—

(a) it is of a kind that is suitable in relation to the employee concerned and appropriate for the employee to do in the circumstances.

(b) the terms or conditions of the contract relating to the place where the work under it is required to be done, the capacity in which the employee concerned is to be employed and any other terms or conditions of employment are not substantially less favourable to the employee than those of his or her contract of employment immediately before the commencement of the period of absence from work while on carer's leave, and

(c) the continuity of service is preserved.

Protection of employees from penalisation.

16. —(1) An employer shall not penalise an employee for proposing to exercise or having exercised his or her entitlement to carer's leave.

(2) Penalisation of an employee includes—

(a) dismissal of the employee.

(b) unfair treatment of the employee, including selection for redundancy, and

(c) an unfavourable change in the conditions of employment of the employee.

(3) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee, as referred to in subsection (2)(a) the employee may institute proceedings under the Unfair Dismissals Acts, 1977 to 1993, in respect of that dismissal and such dismissal may not be referred to a rights commissioner under Part 4.

(4) An employee who is entitled to return to work in the employment concerned in accordance with section 14 but is not permitted by his or her employer to do so—

(a) shall be deemed to have been dismissed on the date on which he or she was entitled to so return to work and the dismissal shall be deemed, for the purposes of the Unfair Dismissals Acts, 1977 to 1993, to have been an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal, and

(b) shall be deemed for the purposes of the Redundancy Payments Acts, 1967 to 1991, to have had his or her contract of employment with his or her employer terminated on the date aforesaid.