Sunday, 8th December 2019

Monthly Archives: October 2013

Confidentiality is Paramount

Confidentiality refers to a situation in which information must be kept secret or private. Confidentiality is extremely important in most businesses as companies deal with sensitive information on a regular basis. This sensitive/secret data could relate to classified projects, clients, suppliers, employees, company finances, trade practices/agreements or a number
of other areas. For several reasons, it is imperative that this type of information remains confidential and that it is only accessible to approved/authorised individuals and groups.

Employers who deal with confidential matters, or who want their employees to use discretion with certain details that they learn throughout the course of their employment, should discuss confidentiality in their Employee Handbook.

Employee Handbook, Confidentiality

An Employee Handbook, often referred to as the employee manual, is a document containing information about the Company and its policies and procedures. It is given to employees by
their Manager/Employer and employees should have to acknowledge (in writing) that they have read and understand it.

This manual is an excellent place to compile all important information pertaining to the Company rules and regulations. It can provide very useful details for new staff during the induction process; however, it can also be a good reference point for existing employees. An Employee Handbook gives clarity to employees, advises them in many situations and creates a culture where problems are addressed in a consistent and fair manner. Employees will know what to expect in certain scenarios because a comprehensive employee handbook outlines all of the relevant procedures.

An Employee Handbook communicates workplace and HR policies and can protect a business from expensive disputes with employees.

Some examples of items that should be discussed in the Employee Handbook are as follows:

  • Annual Leave Entitlements
  • Maternity Leave
  • Performance Management
  • Probation
  • Discipline
  • Bullying and Harassment
  • Drugs/Smoking Policies
  • Dress Code

Confidentiality, Policies and Procedures, Employee Handbook


Where relevant, confidentiality and employer expectations surrounding this should also be included in an Employee Handbook.

Employers should ensure that employees keep the following sensitive information confidential -       


•       Information that has been acquired during, or in the course of employment, or has otherwise been acquired by the employee in confidence;  

•       Information that relates to customers, suppliers or that of other persons or bodies with whom the Company has dealings of any sort;

•        Information that has not been made public by, or with Company permission.

The Employer should ensure that all such information should remain confidential, and, save in the course of business or as required by law, should ensure that employees know that they are 
not allowed to disclose the data to any person without the Company’s prior written consent (whether before or after the termination of employment).

Employees should have to exercise reasonable care to keep safe all documentary or other material containing confidential information. Employees should also be obliged to return any such material in their possession to the Company at the time of termination of employment, or at any other time upon demand.

Mimimum Notice Guide

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Minor and Gross Misconduct

Proper conduct and professional behaviour in the workplace is essential to ensure the efficient operation of a Company on a daily basis. Employers need to define unacceptable conduct so that employees can differentiate between appropriate and inappropriate behaviour/actions.

Gross Misconduct, Minor Misconduct

The repercussions for breach of the behavioural policies or rules within an organisation should be clarified for all employees as it is very important to make them aware that their actions can lead to the disciplinary procedures being invoked. In severe cases misconduct in the workplace can lead to dismissal.


There are two levels of misconduct – minor and gross.


Minor instances of misconduct should initially result in informal advice being given by the Manager without having to resort to disciplinary action – if this approach proves unsuccessful then leaning on the formal disciplinary procedure may be required.

  • Examples of minor misconduct include:
  • Persistent lateness or absenteeism
  • Unsatisfactory standards of work or poor productivity
  • Disruption of other employees
  • Abusive language
  • Unauthorised use of property or negligent damage/loss of property
  • Failure to abide by Company dress code or Health and Safety procedures


Gross Misconduct, Minor Misconduct


Cases of gross misconduct are more serious than ordinary instances of poor conduct. Gross misconduct can call for immediate dismissal and the employer does not have to give notice or pay in lieu of notice in these grave circumstances.




Examples of gross misconduct include:

  • Sleeping while on duty
  • Sexual harassment
  • Making false allegations of personal injury/accidents in the workplace
  • Gross indecent or immoral behaviour, deliberate discrimination or serious acts of harassment
  • Deliberate fraud – e.g. falsification of records in respect of the individual or another employee or deliberate misrepresentation
  • Smoking in breach of the Company policy
  • Endangering others through fighting/physical assault or abuse
  • Incapacity at work due to the use of intoxicants or drugs
  • Possession, supply or use of illicit drugs
  • Deliberate failure to carry out instructions, deliberate damage to Company policy/deliberate poor work performance
  • Breach of code of professional conduct
  • Providing confidential Company information to competitors or unauthorised bodies
  • Rudeness towards clients and objectionable behaviour – neglect of duties that could result in harm to clients
  • The taking of any property/money owned by colleagues or the Company without authorisation
  • Arriving to work under the influence of alcohol where carrying out duties may be hindered
  • Unauthorised use of Company property, facilities, or resources. Selling, attempting to sell or promoting the sale of non-Company merchandise while on Company premises.

Employers must commit to treating all staff fairly and equitably and to helping employees to perform effectively. However, in order to protect the interests of the Company as well as the employees, there will be occasions where the need to invoke the Company’s disciplinary
procedure arises.

It is important for Companies to have a Labour Court approved Disciplinary Procedure in place so that employees know what to expect in instances of discipline. The steps in a disciplinary
policy should be followed closely, however, during the probationary period or where gross misconduct has occurred progressive steps can be skipped. Cases must be treated consistently and fairly. Employees engaged in disciplinary proceedings should be given ample opportunity to provide their version of events and extenuating circumstances should be taken into account (if any exist).

Cases must be thoroughly investigated, discrimination must be avoided and procedure should be adhered to including carrying out disciplinary meetings and allowing the employee to be
accompanied by a colleague.


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More cuts in Maternity Benefit – Budget 2014

The Budget 2014 announcement that Maternity Benefit is to be capped at €230 per week has significant implications for numerous employees and employers alike.

Maternity Benefit, Maternity Leave, Budget 2014

The current upper rate of €262 per week is an entitlement enjoyed by the vast majority of women in Ireland claiming Maternity Benefit. The reduction by €32 per week, which will be effective for new Maternity Benefit claims from January 2014, may discourage women from having children. Alternatively, it may force mothers to avail of shorter periods of Maternity Leave than they would like because they simply cannot afford to remain out of the workplace for the full 6 month period.

The reduction of €32 per week over 6 months will see many new mothers lose out on €832 in Maternity Benefit.

Some employers pay the difference between the Department of Social Protection Maternity Benefit figure and the employee’s regular salary (a "top-up" amount) as a gesture to employees so that they do not suffer major financial implications while on Maternity Leave.

The Budget 2014 decision to reduce the amount paid by the State means that employers who cover the difference between Maternity Benefit and an employee's regular salary will now have to find an additional €832 per employee over the 6 month period in order to maintain the same level of maternity pay for employees while they are availing of maternity leave.

Maternity Benefit












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Public holidays, Bank Holiday Pay



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Illness Benefit “Wait Period” Extended from 3 to 6 days – Budget 2014

Budget 2014, Sick Pay, Illness BenefitSick pay from employers is not a statutory entitlement. It is up to the employer to decide whether or not to pay employees while they are out of work sick (once all employees are treated equally). Employers are obliged to provide details of their sick pay policy in employment contracts.


During times of incapacity or illness the employee can apply to the Department of Social Protection for Illness Benefit (once the employee has paid enough in PRSI contributions he or she should be entitled to Illness Benefit).


If it is Company policy to continue to pay employees while they are ill or incapacitated, the employer often requires that the employee signs over any State Illness Benefit received to the Company.


Sickness Benefit, Illness Pay


A Budget 2014 announcement confirmed today (15th October, 2013) that the number of
“waiting days” for Illness Benefit will be increased from 3 days to 6 days from 1st January 2014.


What this means is that an employee will not be entitled to receive Illness Benefit for the first 6 days of any period of incapacity for work. This is more than one full working-week.

Sick Pay, Work Illness


This has the potential to significantly affect a large number of people - employees and employers alike. The extension, which is said to save the state €22million, will negatively impact employees who work for companies that do not pay for sick leave – doubling the number of days that must elapse before they are entitled to receive any income.


The decision will also have an impact on companies who continue to pay employees during periods of illness or incapacity but recover some of the costs of doing so by forcing employees to sign over any State Illness Benefit received as, from January of next year, the employer will not now receive any refund for the first 6 days of absence.


Annual Leave Tracker



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Grievances in the Workplace


It is essential for companies to have a Grievance Policy in place so that employees know the correct procedure to follow when addressing problems or concerns regarding work, Management or another staff member. The policy should also ensure that employees can formally raise a grievance regarding any decisions or actions taken by their employer. Employees should be encouraged to make Management formally aware of situations where they feel that a policy or procedure is not being followed or applied correctly to all employees.

It is understandable and acceptable that when people work together misunderstandings, concerns or problems can arise. Companies should implement a culture of openness as well as a willingness to listen and co-operate. The hope here is that issues/misunderstandings can be resolved informally in an efficient and an effective manner. However, where such issues
remain unresolved they can become grievances. Employees should be encouraged to seek resolution of an issue by utilising the Company’s Grievance Procedure.

Grievance Procedure

Sample Grievance Procedure

1)     Staff should approach their Manager in the first instance to arrange a meeting to discuss, and attempt to resolve, the problem/concern. (See point 4 below for procedure when the grievance involves the Manager). The employee should be asked to document their grievance in writing. This is very important.


2)     The employee should be allowed to have a colleague (of their choice) accompany them at the meeting for support purposes.


3)      The issue should be discussed in detail and a reasonable timeframe for resolution should be worked out (1 working week is a reasonable timeframe in most instances).


4)      If the employee is not satisfied with the outcomeafter the relevant time has elapsed, he or she should appeal to the General Manager. If the initial grievance relates to an employee’s direct Manager then he or she should skip directly to this stage.


5)     The problem/grievance should be discussed in detail once again with the General Manager and a reasonable timeframe for resolution should again be given (typically 1 working week is sufficient; this timeframe may vary depending on the severity of the issue/type of complaint).


6)     If the employee is dissatisfied with the outcome of the final stage of the procedure then further recourse should be made available and the employee should be made aware that he or she can request a meeting with a Company Director.


7)     The issue should be discussed for a third time and a reasonable timeframe for resolution given (again, depending on the severity of the issue, 5 working days should be sufficient).


8)     The decision, following the exhaustion of the entire process outlines above, should be final and no further Company appeal need be entertained.


9)     If the employee is still unhappy with the outcome he or she should then choose to seek recourse through external bodies.



Click the below image to download your Guide to issuing Contracts of Employment





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Probationary Periods in the Irish Workplace

Employment references for prospective employees can be great indicators of employee skills or characteristics and they should always be thoroughly vetted. However, for various reasons, they may not always give a true and present reflection of the candidate or they may reflect what the employee’s capabilities were at a different time and this may not necessarily match their current skills. References can also depict suitability for a role that is dissimilar to the one being filled. For this reason it is advisable for employers to engage new members based on multiple evaluations to protect themselves and to ensure not to waste any time or resources on someone who is not adequately equipped for the role.

Probation Performance Assessment Form

An applicant’s cover letter and curriculum vitae, as well as the resulting interview(s), can tell an employer a lot about the potential new employee - it is not uncommon, however, to ask shortlisted candidates to perform competency-based assessments or aptitude tests so that the employer can acquire a full picture of the candidate’s abilities and determine whether or not he or she is the right fit for the vacancy. It is customary for employers to hire new members on a probationary period of 6 months or a term not dissimilar to this.


This probationary period does not prejudice the Company’s right to dismiss in accordance with the notice provisions contained in the employee’s individual statement of main terms of employment, or without notice for reasons of gross misconduct, should this be necessary.


This period should be used by the employer to fully assess the employee’s work performance and establish suitability. If the work performance is not up to the required standard or the employee is considered to be unsuitable the employer should either take swift remedial action or terminate the employment, without recourse to the disciplinary procedure.


At the end of the probationary period the employee should again be reassessed. If he or she has not reached the required standard the employer should, at their discretion, either extend the probationary period in order that remedial action can be taken or terminate the contract of


Probationary Period in Ireland


The probationary period should not in any case exceed eleven months in total.  The employee should receive notice of the Company’s intention to extend the probationary period before or at the end of the initial 6 month probationary period.


A clause should allow that any continuous period of absence of four weeks or more would suspend the probationary period until the employee’s return to work.


To avoid any risk of discrimination, policies (like the probationary period outlined above) should be fair and consistent and should apply to all new employees throughout the Company.  In disciplinary proceedings, when dealing with employees on probationary periods, progressive steps can be skipped but it is a common misconception that fair procedures and natural justice need not be adhered to during the probationary period.


The Unfair Dismissals Acts 1997-2007 will not apply to the dismissal of an employee during a period at the beginning of employment when he/she is on probation or undergoing training provided that:

•the contract of employment is in writing

•the duration of probation or training is one year or less (including annual leave) and is specified in the contract


It is important to bear in mind that this exclusion from the Acts will not apply if the dismissal results from trade union membership or activity, pregnancy related matters, or entitlements under the maternity protection, parental leave, adoptive leave and carer's leave legislation.


Mimimum Notice Guide
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Annual Leave Entitlements Guide Ireland

Annual leave is paid time off work that employees are granted by their employers - it can be used for whatever the employee wishes. It is important for employees to recharge the batteries and annual leave helps maintain a motivated and productive workforce. It is essential to note that the employer is statutorily obliged to provide a certain amount of annual leave to his or her employees. An employer can, of course, provide more leave than he or she is obliged to give – if an employer offers more leave to employees with long service histories or employees who exceed targets, for instance, this policy should be clearly defined and should be applied fairly across the board.  

Regardless of the employee’s status or length of their service everyone is entitled to annual leave. All time worked is eligible for paid holidays.


Here is an easy guide to assist employers in working out what leave should be allocated to each employee:


Annual Leave Guidelines


There are three methods used to work out leave entitlements:


a)            The most common method used is: 4 working weeks in a leave year during which the employee works a minimum of 1,365 hours (Unless the employee has changed employment during that year).

b)            1/3 of the employee’s working week per calendar month of at least 117 working hours (Eg: 1.67 * 12 = 20 days)

c)            8% (.08) of the hours worked by the employee in the leave year (the total is not to exceed 4 working weeks)

In some instances an employee’s leave could be worked out using more than one of the approaches listed above – where this is the case all applicable methods should be calculated and the employee shall be entitled to the highest result. Remember - the maximum statutory annual leave entitlement is four of his / her normal working weeks.


How to calculate an employee’s annual leave pay:


Not everyone works a 9-5 office job and not all employees earn the same gross figure on a weekly basis so here is a guide on how to determine holiday pay due to various categories of employees:

(a)            If the employee’s pay is calculated by a fixed rate or a salary then the figure due to the employee per week of paid annual leave is equivalent to the amount he or she received for the normal weekly working hours last worked - This payment includes any regular bonus or allowance (that isn’t based on work completed) - it excludes any overtime pay.


Annual Leave

(b)           If the employee’s pay is not calculated by a fixed rate or salary but instead by commission, for instance (or based on productivity rates) the amount paid to this employee per week of annual leave should equal their average weekly pay calculated over the 13 weeks prior to their annual leave commencing. (If the employee did not work during that period, the average weekly pay is calculated over the 13 weeks prior to the employee’s last working day before the annual leave commences. This excludes overtime.

In order to accurately calculate the number of annual leave days an employee is entitled to it is necessary to incorporate all hours worked in the calculation including time spent on annual leave (yes, employees accrue annual leave while on annual leave!), time spent on maternity leave, parental leave, force majeure leave or adoptive leave as well as time spent on the first 13 weeks of carer’s leave. Employees do not accrue annual leave while on sick leave, occupational injury, temporary lay-off, or career break.


If an employee falls sick during his or her annual leave this day(s) is not counted as annual leave (once it is covered by a medical certificate) and the annual leave day is kept for them to use at a later date.


It is common practice for an employee to request their desired leave dates and usually, once an agreed period of advance notice is given (allowing the employer to arrange suitable cover etc.), the employer agrees. Annual leave is usually discussed in terms of weeks but, with employer consent, it can be broken down into shorter periods – often days or even half days at a time. It is the employer who approves holidays (it would not work from a business perspective if all employees were to arrange leave at the same time, for instance). The employer is, however, required to take the employee’s family responsibilities and need for rest and recreation into consideration.


This annual leave must be given to employees within the leave year or, with the consent of the employee, within the first six months of the following year. The onus is on the employer to ensure that the employee takes their statutory leave allocation within the appropriate period. Employees may, with the consent of the employer, carry over holidays that exceed the statutory allowance to the next year.


If the contract of employment is terminated and there is unused annual leave in respect of the employee the employer is obliged to compensate the employee for the accrued leave. It is illegal to pay an employee in lieu of the minimum statutory leave entitlement unless the employment relationship is terminated.

Annual Leave Tracker

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Bank Holiday Pay and Entitlements

With the October Bank Holiday weekend fast approaching we thought you might find some information on Public Holidays and the relevant employer obligations/responsibilities around pay useful!

There are nine Public Holidays in Ireland each year - they are:

Public Holidays, Bank Holiday PayNew Year's Day (1 January)

•St. Patrick's Day (17 March)

•Easter Monday (Changes every year)

•The first Monday in May, June & August

•The last Monday in October

•Christmas Day (25 December)

•St. Stephen's Day (26 December)

Here is a breakdown of the statutory outline of Public Holiday Entitlements under Irish Employment Legislation:

Did you know that employees scheduled to work on a Public Holiday are entitled to an additional day's pay for the day?

For instance, let's take “Employee A” as an example – “Employee A” works on the day the Public Holiday falls - let's say “Employee A” is a retail store employee and is required to work on St. Stephen's day as it is the first day of the store's seasonal sale - On a normal working day “Employee A” earns €100.

This means that “Employee A” is entitled to receive the usual €100 for the hours worked on the Public Holiday as well as an additional €100 - So “Employee A” receives €200 for working on the Public Holiday. If there is any ambiguity in ascertaining what an additional day's pay should
equal the employer should look at the last day worked prior to the Public Holiday.

“Employee B” represents an employee who is normally scheduled to work on a day that a Public Holiday falls but is not required to work on that day (for example - an administrative assistant in a bank who typically works 09:00-17:00 Monday – Friday, who is not required to work on
Easter Monday).

“Employee B” should receive their normal day's pay for that day as well as not being required to work on the Public Holiday. On a normal working day “Employee B” receives €200. When a Public Holiday falls “Employee B” will not be required to work on this day as the business is closed. “Employee B” will still receive their normal day’s pay.

Public holidays, Bank Holiday Pay

The one that can cause the most confusion is the case of “Employee C”

Employees who are not normally scheduled to work on the Public Holiday will receive one-fifth of their normal weekly pay for the day. “Employee C”, for instance, works Wednesday – Friday and receives €100 per day in remuneration. If a Public Holiday falls on a Tuesday, even though “Employee C” never works that day he or she still has the right to benefit from the Public
Holiday in some way.

“Employee C” is still entitled to be paid a certain amount as a benefit for the Public Holiday (one-fifth of their normal weekly pay). If this employee earns €300 per three day week (Wednesday-Friday) they are entitled to earn an additional €60 during a week where a Public Holiday falls on a Monday or Tuesday.

The above rules will apply for all Public Holidays.

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Maternity, Adoptive and other forms of leave from Employment

Paid leave of absence for mothers, whose babies are born through surrogacy arrangements, falls outside the scope of the law.

In September 2013 The European Court of Justice found that an Irish teacher (Ms. Z), whose child was born through surrogacy, did not have an automatic right to either paid Adoptive Leave or Maternity Leave from her employment.

When Ms. Z’s application for paid Adoptive Leave was denied she brought a complaint to the Equality Tribunal. The woman, who has no uterus as a result of a rare medical condition, claimed that she was discriminated against on the grounds of sex, family status and disability.

Maternity Leave, Adoptive Leave

The woman was told by her employer that she could take unpaid parental leave instead of the requested Adoptive Leave; however, as the child was genetically hers and her name was on the American birth certificate, Ms. Z felt that she was being treated unfairly.

The surrogacy scenario can be a challenging one for all concerned and blurred lines surrounding what mothers are entitled to in the workplace just adds to the complexity of the situation.

The Equality Tribunal referred the case to the European Court of Justice which found that the woman did not have any automatic right to Adoptive Leave.

The legal opinion of the Advocate General stated that her differential treatment was not based on sex, family status or disability, as claimed, but instead on the “refusal of national authorities to equate her situation with that of either a woman who has given birth or an adoptive mother”.

The recent revelation, that Irish women who have babies through surrogacy arrangements are not afforded the same rights as mothers who have adopted or given birth to their babies, has highlighted the uncertainties/complexities surrounding the issue of surrogacy in both Irish and
EU law.

Adoptive Leave, Maternity Leave, Employer Responsibilities

Rights to Maternity and Adoptive Leave defined:

If an employee becomes pregnant while employed in Ireland she is entitled to take Maternity Leave. This entitlement extends to all female employees regardless of their length of service and the number of hours worked per week etc.


Since March 1st 2007, employees have a statutory right to 26 weeks’ Maternity Leave. A further 16 weeks’ Additional Maternity Leave is available to them should they wish to take advantage of it. Employees are not obliged to avail of the entire period of leave open to them; however,
they must take a minimum of two weeks prior to the birth and at least 4 weeks after giving birth.

If the baby is born prematurely then Maternity Leave starts on the day the baby is born.

Employees are obliged to notify their employer of their wish to take Maternity Leave as soon as is reasonably practicable (not later than 4 weeks prior to the desired commencement date). Employees must produce a medical certificate confirming the expected birth date. Employers must give paid time-off for doctor/midwife recommended medical appointments for all
pregnancies and employees are also entitled to attend one set of antenatal classes during one pregnancy. The employer should be given written notice 2 weeks in advance of such appointments. Expectant fathers are also entitled to be paid by their employer while attending one set of antenatal classes.

While some do, it is important to remember that employers are not obliged to pay employees while they are on Maternity Leave. Employees who have contributed enough PRSI can apply for Maternity Benefit from the Department of Social Protection. Employers, who do continue to pay employee salaries during Maternity Leave, often require the employee to forward to them any
Maternity Benefit Payment from the Department of Social Protection.

Most employees do not have any right to remuneration from their employer during Additional Maternity Leave and there is no state benefit payable during this time, however, employees are still entitled to avail of this extra 16 weeks away from the workplace immediately after the conclusion of their regular Maternity Leave. It is important to note that Employees must
apply to their employer in writing 4 weeks prior to the conclusion of their Maternity Leave if they wish to avail of this Additional Maternity Leave.



Employees are protected against discrimination or loss of employment through redundancy or dismissal on grounds relating to pregnancy and Maternity Leave. Employees must give notice of their intention to return from Maternity Leave at least 4 weeks prior to doing so. Employees must return on the same terms and conditions as when they left (unless this in not reasonably

There is an obligation on the employer to carry out a specific risk assessment for employees who are pregnant, and for those who are breastfeeding or who have just given birth, in order to assess whether there are any workplace hazards for these employees. Should this risk assessment determine that hazards (that cannot be eliminated) exist the employee will be
moved to alternative work or, if this is not feasible, the employee will be granted health and safety leave. The employee is entitled to payment from the employer in respect of the first 21 days of such health and safety leave and can apply for social welfare benefit for any period thereafter.


Adoptive Leave, Maternity Leave

Adoptive Leave:

When an employee is adopting a child she is entitled to a minimum of 24 consecutive weeks’ ordinary Adoptive Leave starting on the day of placement of the child. Only the adoptive mother is entitled to avail of Adoptive Leave from employment, except in the case where a male is the sole adopter. 

There is no statutory obligation on employers to provide pay to employees while they are on Adoptive Leave – some companies, however, do offer this benefit to employees. Individuals may be entitled to Adoptive Benefit from the Department of Social Protection.

Employees are also entitled to take 16 weeks' additional unpaid Adoptive Leave immediately following the period of standard Adoptive Leave. As is the case with Additional Maternity Leave, Employees must apply for the Additional Adoptive Leave in writing 4 weeks prior to the end of ordinary Adoptive Leave.  In special circumstances, for instance cases involving foreign adoption, Additional Adoptive Leave may be taken at a time not directly following the regular Adoptive Leave period.

An employee’s entitlement to Annual Leave and Public Holidays will continue to accrue as normal during Maternity Leave and Adoptive Leave.

It is essential for employers to remember that, similar to other forms of protective leave, employees are entitled to return to the role they held immediately before commencing Adoptive Leave, subject to the employee having notified the employer of the intention to return to work, not later than four weeks before the date of expected return.

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