Regulations, 2011

L.N. 130 of 2011

EMPLOYMENT AND INDUSTRIAL RELATIONS ACT

(CAP. 452)

Protection of Maternity (Employment) (Amendment)

Regulations, 2011

IN exercise of the powers conferred by articles 10 and

48(2) of the Employment and Industrial Relations Act, the Prime

Minister has made the following regulations –

The title of these regulations is the Protection of

Maternity (Employment) (Amendment) Regulations, 2011 and they

shall be read and construed as one with the Protection of Maternity

(Employment) Regulations, 2003, hereinafter referred to as “the

principal regulations”.

In sub-regulation (1) of regulation 2 of the principal

regulations, for the definition “pregnant employee” there shall be

substituted the following

“ “pregnant employee” means an employee who

informs her

employer in writing of her pregnancy and

who subsequently, within fifteen days, formally informs

her employer of her pregnancy and of the expected date of

confinement by means of a certificate issued by a registered

medical practitioner or midwife;”.

For sub-regulation (5) of regulation 3 of the principal

regulations, there shall be substituted the following

“(5) During the special maternity leave referred to in

sub-regulation (4), the employer shall pay the employee, for

the whole of the period necessary to protect the employee’s

safety or health, a special allowance equivalent to the rate of

sickness benefit payable in terms of the Social Security Act

Provided that the employee shall remain entitled on

termination of the special maternity leave, to all benefits which

may accrue to other employees of the same class or category of

employment at that place of work.”.

Regulation 12 of the principal regulations shall be

amended as follows

(a) in sub-regulation (1) thereof, for the words “such

employee formally notifies the employer”, there shall be

substituted the words “such employee informs her employer”;

(b) for sub-regulation (2) thereof, there shall be

substituted the following

“(2) The provisions of sub-regulation (1) are

without prejudice and shall not apply to cases falling

under article 36(4) and (14) of the Act.”.

Immediately after regulation 12 of the principal Adds new regulation

regulations, there shall be inserted the following new regulation;

In the case that an employee who is pregnant

or has recently given birth or who is breastfeeding is in

her probationary period, the following provisions shall

have effect and shall prevail in case of conflict with any

specific requirement regulating the probationary period

in the Act

(a) in the case of a pregnant employee who

is in her probationary period, if the probationary

period has not been exhausted on the date when

the pregnant employee is to start her maternity

leave, the probationary period shall be deemed

to have been automatically suspended on the

commencement of the maternity leave for the

whole period of maternity leave and of any period

of incapacity for work owing to a pathological

condition arising out of confinement in the five

weeks following the end of maternity leave as

referred to in article 36(17) of the Act, and any

remaining probationary period shall thereafter

continue to run upon her return to work following

the end of the maternity leave or from a period

of incapacity for work following the end of such

leave, as the case may be;

(b) in the case that a pregnant employee or

an employee who has recently given birth or who

is breastfeeding is granted special maternity leave

before the probationary period has been exhausted,

the probationary period shall be considered to have

B

been automatically suspended for the duration of

the special maternity leave and shall, subject to

the preceding paragraph (a), only start to run again

upon her return to work;

(c) notwithstanding article 36(2) of the Act,

in the case of a pregnant employee on probation,

if the employer decides to dismiss a pregnant

employee during the probationary period, the

employer shall be bound to give the reason or

reasons for the employee’s dismissal in writing at

the time of dismissal to justify that the dismissal

is unrelated to the employee’s condition. If the

employer fails to give written reasons for dismissal

at the time of dismissal or if the employee

considers that any reason given by the employer is

unjustified, and that she considers that the dismissal

was unfair, the employee may present a complaint

of alleged unfair dismissal before the Industrial

Tribunal within four months from the date of the

dismissal. In any proceedings, where the employee

establishes before the Tribunal, facts from which

it may be presumed that there has been direct or

indirect discrimination related to her condition,

it shall be for the defendant to prove that the

dismissal was based on a good and sufficient cause

and in the absence of such proof on the defendant’s

part, the Industrial Tribunal shall uphold the

complaint. Furthermore, if the employer fails

to give the reason or reasons for the employee’s

dismissal in writing at the time of the dismissal,

this failure shall be considered by the Tribunal as

an inference that the dismissal was indeed related

to the employee’s condition.”.

B

B

€0.36