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2 1995

ADOPTIVE LEAVE ACT, 1995

PART III

Provisions Relating to Employment Contracts

Preservation or suspension of certain rights, etc. while on adoptive leave.

15. —(1) During her absence from work while on adoptive leave, an adopting parent shall be deemed to have been in the employment of her employer and, accordingly, while so absent she shall, subject to subsection (5), be treated as if she had not been so absent and such absence shall not affect any right related to her employment, other than her right to remuneration during her absence, whether conferred on her by statute, contract or otherwise.

(2) During the absence from work of an adopting parent while on additional adoptive leave, the period of employment before such absence shall be regarded as continuous with her employment following such absence in respect of any right related to her employment, whether conferred on her by statute, contract or otherwise (other than her right to remuneration, which during such absence, shall stand suspended).

(3) Nothing in this section shall affect the right of an adopting parent to be offered suitable alternative employment under section 19 .

(4) A period of absence from her work by an adopting parent while on adoptive leave or additional adoptive leave shall not be treated as part of any other leave (including sick leave or annual leave) to which the adopting parent is entitled.

(5) Where, starting with the commencement of her employment with her employer, an adopting parent is on probation in that employment, is undergoing training in relation to that employment or is employed under a contract of apprenticeship, her probation, training or apprenticeship shall stand suspended during any absence from her work on adoptive leave or additional adoptive leave and shall be completed by her on her return to work after such absence.

(6) An adopting parent shall be deemed not to be an employed contributor for the purposes of the Social Welfare (Consolidation) Act, 1993 , for any contribution week (within the meaning of that Act) in a period of absence from her work on adoptive leave or additional adoptive leave if she does not receive any reckonable earnings (within the meaning of that Act) in respect of that week.

(7) The Minister may by regulations prescribe a period or periods of training in relation to which subsection (5) shall not apply.

Voidance of certain purported terminations of employment, etc.

16. —Each of the following shall be void:

(a) any purported termination of or suspension from the employment of an adopting parent while she is absent from work on adoptive leave or additional adoptive leave;

(b) any notice of termination of the employment of an adopting parent given while she is absent from her work on adoptive leave or additional adoptive leave and expiring subsequent to such absence.

Extension of certain notices of termination of employment or of certain suspensions.

17. —Any notice of termination of her employment given in respect of any adopting parent or any suspension from her employment imposed on such an adopting parent before a period of leave under this Act, whether it be adoptive leave or additional adoptive leave, commences and due to expire during her absence from work on adoptive leave or additional adoptive leave shall be extended by the period of her absence from work on adoptive leave or additional adoptive leave.

General right to return to work on expiry of adoptive leave or additional adoptive leave.

18. —(1) On the expiry of a period during which an adopting parent was absent from work while on adoptive leave or additional adoptive leave, she shall be entitled to return to work—

(a) with the employer with whom she was working immediately before the start of that period or, where during her absence from work there was a change of ownership of the undertaking in which she was employed immediately before her absence, with the owner (in this Act referred to as “the successor”) of the undertaking at the expiry of her period of absence,

(b) in the job which she held immediately before the start of that period, and

(c) under the contract of employment under which she was employed immediately before the start of that 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 which is identical to the contract under which she was employed immediately before the start of that period, and (in either case) under terms or conditions not less favourable than those that would have been applicable to her if she had not been so absent from work.

(2) For the purpose of subsection (1) (b), where the job held by an adopting parent immediately before the start of the period of her absence on adoptive leave or additional adoptive leave was not her normal or usual job, she shall be entitled to return to work, either in her normal or usual job or in that job as soon as is practicable.

(3) In this section, “job”, in relation to an adopting parent, means the nature of the work which she is employed to do in accordance with her contract of employment and the capacity and place in which she is so employed.

Right to suitable alternative employment in certain circumstances on return to work.

19. —(1) Where an adopting parent is entitled to return to work under section 18 but it is not reasonably practicable for her employer or the successor to permit her to return to work in accordance with that section, she shall be entitled to be offered by her employer, the successor or an associated employer suitable alternative employment in accordance with a new contract of employment.

(2) The following provisions shall apply to a new contract of employment under this section—

(a) the work required to be done under it shall be of a kind which is suitable in relation to the employee concerned and appropriate for her to do, and

(b) its terms or conditions relating to the place where the work under it is required to be done, the capacity in which the adopting parent concerned is to be employed and any other terms or conditions of employment are not substantially less favourable to her than those of her contract of employment immediately before the start of her period of absence from work while on adoptive leave or additional adoptive leave.

(3) For the purposes of this section two employers shall be taken to be associated if one is a body corporate of which the other (whether directly or indirectly) has control or if both are bodies corporate of which a third person (whether directly or indirectly) has control and references hereafter in this Act to associated employer shall be construed accordingly.

Notification of intention to return to work.

20. —(1) An adopting parent who has been on adoptive leave or additional adoptive leave shall, not later than 4 weeks before the date on which she expects to return to work, cause her employer (or, where she is aware of a change of ownership of the undertaking concerned, the successor) to be notified in writing of her intention to return to work and of the date on which she expects to return to work.

(2) Where, in the opinion of a rights commissioner or the Tribunal, there are reasonable grounds for an adopting parent's failure to give the notice under subsection (1) or for an adopting parent giving it otherwise than in the time limits specified thereunder, the rights commissioner or Tribunal, as the case may be, shall extend the time for service of the said notice.

(3) In the absence of reasonable grounds, failure to give notice under subsection (1) or the giving of it otherwise than in the time limits specified thereunder are matters that may be taken into account by a rights commissioner, the Tribunal or Circuit Court in determining the adopting parent's rights under the Act of 1977, this Act or any other relevant enactment so far as the remedies of reinstatement, re-engagement or compensation are concerned.

(4) Notwithstanding subsection (1), where an adopting father's entitlement to leave under this Act amounts to 4 weeks or less he shall, at the same time as he causes his employer to be notified in writing of his intention to take such leave, cause his employer to be notified in writing of his intention to return to work and of the date on which he expects to return to work.

Postponement of return to work.

21. —Where, because of an interruption or cessation of work at her place of employment, existing on the date specified in a notification given under section 12 (3) or 20 or on the date on which an adopting parent is required to return to work under section 12 (2), as the case may be, it is unreasonable to expect an adopting parent to return to work on such date, she may return to work instead when work resumes at the place of employment after the interruption or cessation, or as soon as is reasonably practicable after such resumption.