PROTECTION OF MATERNITY (EMPLOYMENT) REGULATIONS

SUBSIDIARY LEGISLATION 452.91

PROTECTION OF MATERNITY (EMPLOYMENT)

REGULATIONS

5th January, 2004

LEGAL NOTICE 439 of 2003, as amended by Legal Notices 3 of 2004,

427 and 431 of 2007, 130 and 503 of 2011, 258 of 2012 and 415 of 2014.

(1) The title of these regulations is the Protection of

Maternity (Employment) Regulations.

(2) The purpose of these regulations is to lay down minimum

requirements designed to safeguard the employment rights of

pregnant employees, employees who have recently given birth and

breastfeeding employees, thus facilitating improvements in the

safety and health of these employees and to give effect to the

relevant provisions of Council Directive 92/85/EEC.

(3) These regulations shall be applicable without prejudice to

the introduction and implementation of more favourable provisions

in collective agreements or other agreements entered into between

the employer and the employee.

(4) These regulations shall apply to all employees who are

pregnant, have recently given birth or who are breastfeeding.

(1)

In these regulations -

''the Act'' means the Employment and Industrial Relations Act;

''breastfeeding employee'' means an employee who is

breastfeeding during a period of up to twenty-six weeks after her

date of confinement and who has informed her employer of her

condition by means of a certificate issued by a registered medical

practitioner or midwife;

''date of confinement'' means the date of the delivery of the child;

''employee who has recently given birth'' means an employee

who has formally informed her employer of her condition by means

of a certificate issued by a registered medical practitioner or

midwife, and whose date of confinement was

(a) not more than fourteen weeks before in the case of a

stillborn child, and

(b) not more than twenty-six weeks before in the case of a

live birth;

''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;

''risk assessment'' means the assessment carried out by the

employer in terms of the General Provisions for Health and Safety

at Work Places Regulations, or other relevant legislation in terms of

the Occupational Health and Safety Authority Act;

''special maternity leave'' means leave of absence from work

granted by the employer to an employee who is pregnant,

breastfeeding or has recently given birth, when, despite the

employer taking the steps referred to in regulation 3, there exists or

would still exist, a risk that could jeopardise the health or safety of

the employee; such leave is to be granted for as long as the risk

exists and on terms referred to in these regulations;

''working environment'' means the interaction between the nature

of the work, and the physical situation and general environment in

which the worker carries out her work.

(2) Subject to the provisions of subregulation (1), terms and

expressions used in these regulations shall, unless the context

otherwise requires, have the meaning assigned to them in the Act.

(1) In this regulation, employee includes ''pregnant

employee'', ''employee who has recently given birth'' and

''breastfeeding employee''.

(2) The employee’s employment shall be ensured and her

wages shall not be less favourable than those stipulated in her

contract of employment when an employer takes measures to

protect the health and safety of an employee, after a risk assessment

has revealed a risk to the safety or health or an effect on the

pregnancy or breastfeeding of the employee.

(3) The measures referred to in the preceding subregulation

include

(a) the temporary adjustment of the working environment

and, or the hours of work of the employee concerned;

(b) the assignment of the employee to suitable alternative

work which is appropriate for her to do in the

circumstances, in the event that the adjustment of her

working conditions and, or hours of work is not

technically and, or objectively feasible, or cannot

reasonably be required on duly substantiated grounds

Provided that an employee who, without justification,

refuses to perform suitable alternative work provided by her

employer which is considered acceptable in the circumstances by

the Occupational Health and Safety Authority, shall not be entitled

to any remuneration referred to in subregulation (5) during her

special maternity leave

Provided further that when the reason for the measures

taken in terms of subregulation (3) no longer remain valid, the

employer shall endeavour to reassign the employee to the same job

or when this is no longer possible for a valid reason, to equivalent

or similar work which is consistent with her original contract of

employment.

(4) If the employer acts in accordance with the General

Provisions for Health and Safety at Workplaces Regulations but is still

unable to comply with the provisions in subregulation (3), the

employee concerned shall be given special maternity leave by the

employer for the whole of the period necessary to protect her safety

or health, without prejudice to her other entitlement by virtue of

regulation 6 and regulation 7.

(5) During the special maternity leave referred to in

subregulation (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.

(6) If an employee to whom leave has been given under

subregulation (4) as being an employee who is breastfeeding ceases

breastfeeding, she shall, at the earliest practical time, notify her

employer in writing that she has so ceased.

(7) Without prejudice to subregulation (6), if, during a period

of special maternity leave given to an employee, the employee

becomes aware that her condition is no longer such that she is

vulnerable to the risk by virtue of which she was given the special

maternity leave, she shall at the earliest practical time notify her

employer in writing that she is no longer at risk.

(8) Where an employer receives notification from an employee

under subregulation (6) or (7) and has no reason to believe that, if

the employee returned to work, she would be vulnerable to risk as

an employee to whom these regulations apply

(a) the employer shall take all reasonable measures to

enable the employee to return to work in the job which

she held immediately before the start of her leave and

shall then notify her in writing that she can resume

work in that job; and

(b) the special maternity leave given to the employee shall

end seven days after the notification under paragraph

(a) is received by her or, if it is earlier, on the day she

returns to work.

(9) If, during a period of special maternity leave, her

employer -

(a) either takes whatever measures which are necessary in

terms of the General Provisions for Health and Safety at

Workplaces Regulations to ensure that she will no

longer be exposed to any risk by virtue of which she

was given the special maternity leave or becomes able

to move the employee referred to in subregulation (2),

and

(b) notifies the employee in writing that she can return to

work without exposure to that risk or, as the case may

be, that other work is available to her which is suitable

for her as mentioned in subregulation (3)(b),

the special maternity leave shall end seven days after the

notification under paragraph (b) is received by her or, if it is earlier,

on the day she returns to work or, as the case may be, takes up the

other work.

The provisions of regulation 3 shall apply mutatis

mutandis, when an employer takes measures to protect the health

and safety of an em ployee who becomes pregnant or start s

breastfeeding, in terms of the General Provisions for Health and

Safety at Workplaces Regulations, to prevent the risk of exposure

which could jeopardise the health or safety of such an employee, to

agents, processes or working conditions to which exposure is

prohibited in terms of specific provisions made under the

Occupational Health and Safety Authority Act

Provided that the employee has duly informed her employer

that she is pregnant or breastfeeding.

(1) The employee’s employment rights shall be ensured

and her wages shall not be less favourable than those stipulated in

her contract of employment when an employer, who has received

notification by means of a medical certificate that an employee

should not perform night work during her pregnancy and during

breastfeeding for reasons relating to her health and safety, transfers

her to daytime work to comply with his obligations as an employer

in terms of the Occupational Health and Safety Authority Act, or of

subsidiary legislation issued thereunder.

(2) If the employer acts in accordance with the General

Provisions for Health and Safety at Workplaces Regulations but is still

unable to comply with the requirement to transfer the employee to

daytime work as referred to in subregulation (1) as this is not

technically and, or objectively feasible or cannot be required on

duly substantiated grounds, the employee shall be given special

maternity leave as referred to in regulation 3.

(1) A pregnant employee may apply for maternity leave for

an uninterrupted period of fourteen weeks if she notifies her

employer in accordance with regulation 8 and this uninterrupted

period shall increase to sixteen weeks as from 1st January 2012 and

to eighteen weeks as from 1st January 2013 onwards

Provided that employees who shall be on maternity leave on

1st January 2012 shall be automatically entitled to enjoy maternity

leave for an uninterrupted period of sixteen weeks, even where

such maternity leave commenced before 1st January 2012

Provided further that employees who shall be on maternity

leave on 1st January 2013 shall be automatically entitled to enjoy

maternity leave for an uninterrupted period of eighteen weeks, even

where such maternity leave commenced before 1st January 2013.

(2)

Maternity leave shall be availed of as follows

(a) six weeks of the maternity leave entitlement to be

taken compulsorily immediately after the date of

confinement;

(b) four weeks of maternity leave to be availed of

immediately before the expected date of confinement,

unless agreed otherwise between the employer and the

employee;

(c) the remaining balance of entitlement to be availed of,

in whole or in part, either immediately before or

immediately after the above periods, as the employee

may request

Provided that if she is unable to avail herself of the

maternity leave entitlement before the date of confinement, such

remaining balance of entitlement may be availed of after

confinement.

An employee on maternity leave shall be entitled to the

first fourteen weeks of maternity leave with full wages but if the

employee chooses to avail herself of any additional maternity leave

beyond the fourteen weeks in term s of r egulation 6(1), the

employer shall not be obliged to pay any wages for those weeks of

maternity leave which go beyond the aforementioned fourteen

weeks, without prejudice to any relevant benefit in respect of any

period of maternity leave which goes beyond fourteen weeks in

terms of the Social Security Act to which the employee may be

entitled if she chooses to avail herself of maternity leave beyond

the paid fourteen weeks.

(1) A pregnant employee who intends to avail herself of

her maternity leave entitlement, shall notify the employer in

writing of the date when she intends to avail herself of such

entitlement.

(2) The notification referred to in the previous subregulation

shall be given to the employer at least four weeks before the

maternity leave begins, in so far as is reasonably practicable.

(1) A pregnant employee shall be entitled to time off

without loss of pay or any other benefit, in order to attend ante-

natal examinations, if such examinations have to take place during

her hours of work.

(2) The employer may request documentation to show the

appointment times or attesting to actual attendance for such

examinations.

Notwithstanding anything stated to the contrary in any

other law, regulation, order, collective agreement or in any contract

of service, employees shall not be obliged to work overtime

(a) during pregnancy;

(b) for a period of twelve months from either the birth of

his or her child or from the effective date of the

adoption of a child

Provided that the right granted in this regulation shall be a

non transferable right.

An employee on a fixed-term contract shall, for the

duration of that contract have the same rights conferred by these

regulations, but shall not be liable to pay the employer a sum

equivalent to the wages she received during maternity leave if her

c o n t r a c t o f e m p l o y m e n t i s n o t e x t e n d e d a t t h e e m p l o y e r ’s

discretion for up to a period of time which is sufficient for her to

fulfil the obligations pursuant to article 36(20) of the Act.

(1) When an employee is on maternity leave or special

maternity leave, the employee shall be deemed to have been in the

employment of the employer and during any such absence she shall

be entitled to all rights and benefits which may accrue to other

employees of the same class or category of employment at the same

place of work, including the right to apply for promotion

opportunities at her place of work, and on return to work, she shall

be entitled to return to the same job or when this is no longer

possible for a valid reason, to equivalent or similar work which is

consistent with her original contract of employment.

(2) During the leave referred to in the previous subregulation

the employee shall have no right to any bonus or allowance related

to performance or production.

(1) Subject to subregulation (2), it shall not be lawful for

the employer to dismiss a pregnant employee, an employee who has

recently given birth or a breastfeeding employee, from the date in

which such employee informs her em ployer, by means of a

certificate issued by a registered medical practitioner or midwife,

of her pregnancy to the end of her maternity leave, or during any

period of special maternity leave, because of her condition or

because she avails herself or seeks to avail herself of any rights in

accordance with these regulations.

(2) The provisions of subregulation (1) are without prejudice

and shall not apply to cases falling under article 36(4) and (14) of

the Act.

(3) In cases where there is good and sufficient cause to dismiss

the employee, the employer shall

(a) cite duly substantiated grounds for her dismissal in

writing in her notice of termination;

(b) send a copy of such notice to the Director.

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 been

automatically suspended for the duration of the special

maternity leave and shall, subject to 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.

(1) An employee who is dismissed shall be regarded for

the purposes of these regulations as having been unfairly dismissed

if the reason (or, if more than one, the principal reason) for the

dismissal is that the employee -

(a) refused (or proposed to refuse) to comply with a

requirement which the employer imposed (or proposed

to impose) in contravention of these regulations,

(b) refused (or proposed to refuse) to forgo a right

conferred on her by these regulations.

(2) In cases referred to in subregulation (1), an employee may

present a complaint to the Industrial Tribunal set up in terms of Part

III of Title II of the Act, that her employer has refused to permit her

to exercise any right she has under these regulations.

Any person contravening the provisions of these

regulations shall be guilty of an offence and shall be liable, on

conviction, to a fine (multa) of not less than four hundred and

sixty-five euro and eighty-seven cents (465.87).