Parental Leave and Employment Protection Act 1987
Part 5 Rights and Obligations After Commencement of Parental Leave

Section 40 Presumption that employee's position can be kept open in the case of first period of parental leave not exceeding 4 weeks

(1)Where an employee takes a continuous period of parental leave

(a) That does not exceed 4 weeks (inclusive of any public or statutory holiday falling within the period); and

(b) That is the first period of parental leave taken by the employee in respect of the child; and

(c) Of which the employee's employer has had no less notice than the period of notice required by section 31(3) or section 33 of this Act, as the case may be,

the employer shall be presumed, in any proceedings under this Act, to be able to keep open for the employee, until the end of that period of parental leave, the employee's position in the employment of the employer unless the employer proves that the employee's position cannot be kept open because of the occurrence of a redundancy situation.

(2) For the purposes of determining under subsection (1) of this section whether an employer has had no less notice of a period of parental leave than the period of notice required by section 31(3) or section 33 of this Act, as the case may be, it shall be sufficient if the employer had notice that a period of parental leave not exceeding 4 weeks would be taken by the employee, notwithstanding that the employer did not have the requisite notice of the exact date on which the period of parental leave would commence, and the exact date on which it would cease.

(3) The reference in subsection (1) of this section to the employee's position in the employment of the employer shall be a reference to the position ordinarily held by the employee, and shall not include any position to which the employee was temporarily transferred under section 16 of this Act.

Section 41 Presumption that employee's position can be kept open in the case of other periods of parental leave

(1) Where an employee takes a period of parental leave (other than a period of parental leave referred to in section 40 of this Act) the employer shall be presumed in any proceedings under this Act, to be able to keep open for the employee, until the end of the employee's parental leave, the employee's position in the employment of the employer unless the employer proves that the employee's position cannot be kept open

(a) Because a temporary replacement is not reasonably practicable due to the key position occupied within the employer's enterprise by the employee; or

(b) Because of the occurrence of a redundancy situation.

(2) In determining whether or not a position is a key position for the purposes of subsection (1)(a) of this section, regard may be had, among other things, to

(a) The size of the employer's enterprise; and

(b) The training period or skills required in the job.

(3) The reference in subsection (1) of this section to the employee's position in the employment of the employer shall be a reference to the position ordinarily held by the employee, and shall not include any position to which the employee was temporarily transferred under section 16 of this Act.

Section 42 Employer's obligations in respect of remuneration and holiday pay

(1) Subject to subsections (2) and (3) of this section, the employer of an employee who takes any form of parental leave in accordance with this Act shall not be obliged to pay that employee any remuneration for

(a) Any period of the employee's parental leave under this Act; or

(b) Any period during which the employee is entitled under this Act, following any period of parental leave, to preference in obtaining employment with the employer.

(2) Where an employee becomes entitled to any annual holiday on pay during

(a) A period of parental leave under this Act; or

(b) A period of preference in obtaining employment; or

(c) The period of 12 months commencing with the date on which the employee returns to work after a period of parental leave under this Act or a period of preference in obtaining employment,

the employee shall, notwithstanding anything in the Holidays Act 2003 , be entitled to holiday pay for that holiday only at the rate of the employee's average weekly earnings (as that term is defined in the Holidays Act 2003 during the year in respect of which the employee has become entitled to the holiday.

(3) Where an employee is absent on parental leave at any time during the fortnight ending on the day on which any of the whole holidays referred to in [ the Holidays Act 2003 ] occurs, the employee shall, notwithstanding anything in section 25 or section 30 of that Act, be entitled to holiday pay for that holiday at an amount equal to one-tenth of the employee's wages for an ordinary working day multiplied by the figure obtained by adding together

(a) The number of ordinary working days during the fortnight actually worked by the employee:

(b) The number of ordinary working days during the fortnight on which the employee was absent from employment due to any reason other than the taking of parental leave or being absent during a period of preference in obtaining employment under this Act.

Section 43 Continuity of employment

Where an employee resumes service with the same employer at the end of a period of parental leave or while the employee is entitled, following parental leave, to preference in obtaining employment with the employee's employer

(a) The employee's service, for the purpose of any rights and benefits that are conditional on unbroken service, shall not be broken

(i) By the taking of parental leave; or

(ii) By the employee being without a position in the employer's service during part of the period of preference; or

(iii) By both; and

(b) Any period during which the employee was on parental leave and any period during which the employee was entitled, following parental leave, to preference in obtaining employment with the employer shall count,

(i) Subject to section 42 of this Act, as time served under the employee's [employment agreement] . . . ; and

(ii) Subject to section 44 of this Act, as service for the purpose of any superannuation scheme to which the employee belongs in the employee's capacity as an employee of the employer.

Section 44 Contributions to superannuation schemes

Nothing in section 43(b)(ii) of this Act shall

(a) Entitle an employee to have any period counted as service for the purposes of a superannuation scheme if the employee is required to pay contributions in respect of that period and has not done so; or

(b) Relieve an employee from any obligation under a superannuation scheme to pay contributions in respect of any period during which the employee is on parental leave or during which the employee is entitled, following parental leave, to preference in obtaining employment with the employee's employer.

Section 45 Early ending and extension of parental leave

(1) Subject to compliance with section 39(2) of this Act, an employee who is on parental leave may,

(a) If the employee or the employee's spouse suffers a miscarriage; or

(b) If the child is stillborn or dies; or

(c) If the employee or the employee's spouse has consented to the adoption of the child and some other person has the care of the child with a view to its adoption; or

(d) If the employee ceases to have care of the child in respect of whom the parental leave is taken; or

(e)If the employer consents,

choose

(f) Where the employee's position is being kept open by the employer, to end the parental leave by returning to work before the date on which the employee is required to return to work at the end of the parental leave; or

(g) In any other case, to end the parental leave and begin the period of preference.

(2) Where a female employee is on maternity leave under section 7 of this Act, an employer may, in giving consent under subsection (1)(e) of this section, make it conditional on the female employee giving to the employer, before the female employee ends her maternity leave under subsection (1)(f) or subsection (1)(g) of this section, a certificate from a registered medical practitioner to the effect that the female employee is fit to return to work.

(3) Subject to subsection (4) of this section, an employee who is on parental leave may, if the employer consents, extend the parental leave until a specified date which shall thereafter be the date on which the employee's parental leave will end.

(4) Without limiting any right of an employee to take a period of leave otherwise than by virtue of this Act, and subject to section 9(2) of this Act, nothing in subsection (3) of this section shall entitle an employee to extend any period of parental leave with the result that,

(a) In the case of a period of maternity leave, the period of maternity leave exceeds 14 weeks:

(b) In the case of a period of [partner's/paternity leave], the period of [partner's/paternity leave] exceeds 2 weeks:

(c) In the case of a period of extended leave, the period of extended leave, when aggregated with

(i) All maternity leave (other than maternity leave in excess of 14 weeks taken under section 9(2) of this Act) and extended leave taken or proposed to be taken by the employee or the employee's spouse under this Act; and

(ii) All leave (excluding [partner's/paternity leave]) taken or proposed to be taken by the employee or the employee's spouse under any other Act or under any . . . [employment agreement],—

exceeds 52 weeks.

Section 46 Failure to return to work

If an employee who takes up parental leave and whose position is kept open by the employer

(a) Fails, without good cause, to return to work at the end of that period of parental leave; or

(b) Informs the employer, before the end of that period of parental leave, that the employee has decided not to return to work at the end of the period of parental leave,

the employee's employment shall, subject to any agreement between the employer and the employee, be deemed to have been at an end as from the day on which the period of parental leave began.

Section 47 Failure to accept employment

If an employee who has taken parental leave fails, without reasonable excuse, to take up, on the date specified by the employer or within 7 days thereafter, any position substantially similar to the position ordinarily held by the employee before taking parental leave that is offered to the employee by the employee's employer during the period of 26 weeks beginning with the day after the date on which the period of parental leave ends, that employee's employment shall be deemed to have been at an end as from the day on which the period of parental leave began.

Section 48 Workers employed to replace employees on parental leave

Where a temporary employee is employed to replace an employee who is on parental leave, the employer shall, before employing the temporary employee, inform the temporary employee in writing

(a) That the temporary employee is being employed on a temporary basis in the place of an employee who is on parental leave; and

(b) That the employee may return to work, in accordance with section 45 of this Act, before the date on which the employee is required to return to work at the end of the parental leave.

End of Part 5