This Bill, which gives effect to EU Directive 1158/2019 on work life balance for parents and carers, quietly passed all stages in the Oireachtas on Wednesday, 29th March 2023. Here Brian Gill, Partner and Head of Commercial Litigation at Callan Tansey Solicitors LLP, outlines the provisions of the BIll and what they mean for Employers and Employees. The Work Life Balance and Micellaneous Provision Bill 2022 recognises the importance of family life and improved quality of life for all workers in Ireland. It supports Employees to achieve a better balance between their home and work lives. It also seeks to support those who are victims of domestic violence through the introduction of a statutory paid leave entitlement. It lays out a framework for the following four key Employee rights:
- Leave for Medical Care Purposes
- Leave for Victims of Domestic Violence
- To request a flexible working arrangement for care purposes
- To request a remote working arrangement
Leave For Medical Care Purposes
Key Features
- 5 days unpaid leave
- Threshold of care is “significant care or support for a serious medical reason”.
- Family/blood relationships covered as well as co-residents of the applicant.
- Medical Certificate signed by registered medical practitioner required or such other evidence that shows the person is in need of “significant care or support for a serious medical reason”.
- 5 days unpaid “leave for medical care purposes”
The threshold of care is “significant care or support for a serious medical reason”. The person receiving the care includes a child, spouse, civil partner, cohabitant, parent, grandparent, brother, sister of the employee as a well as a person with whom the employee resides in the same household.
The request for such leave must be accompanied by “relevant evidence” which the Act defines as a medical certificate signed by a registered practitioner or such other evidence as the Employer might reasonably require to show that the person concerned is or was in need of “significant care or support for a serious medical reason”
The Parental Leave Act 1998 is amended accordingly with a new Section 13A.
Leave for Victims of Domestic Violence
Key Features
- First statutory provision of its kind.
- 5 days paid leave for victims of domestic violence
- Leave is granted to give the Employee the time to pursue specified matters
- Definition of domestic violence provided.
- Categories of perpetrators of the domestic violence are specified
- Categories of affected persons are also specified.
- Terms of returning Employees fully protected.
The 5 days paid leave for victims of domestic violence is provided to allow the Employee concerned to seek medical attention; obtain services from a victim services organisation; obtain psychological or other professional counselling; relocate temporarily or permanently, obtain a Court Order under the Domestic violence Act; seek advice or assistance from a legal practitioner.
Domestic Violence is defined in the Act as violence or a threat of violence, including sexual violence and acts of coercive control committed against an employee or a relevant person by:
- The spouse or civil partner of the Employee
- The cohabitant of the Employee
- A person with whom the Employee is or was in an intimate relationship.
- A child of the Employee who is of full age and is not, in relation to the Employee or relevant person a dependent person
A relevant person is defined as:
- A spouse or civil partner of the Employee
- A cohabitant of the Employee
- A person with whom the Employee is or was in an intimate relationship.
- A child of the employee who has not attained full age
- A person, who, in relation to the employee is a dependent person.
The Parental Leave Act 1998 is amended accordingly with a new Section 13AA.
The Employee returning to work from this category of leave shall be entitled to return to working conditions that are no less favourable to the ones they left. They shall also be entitled to the benefit of any enhanced terms that would have come their way had they not been on leave.
Right To Request A Flexible Working Arrangement For Care Purposes
Key Features
- Right is conferred on parents and carers
- The leave is available for the care of children up to the age of 12 or adopted children for a period of two years beyond the date of their adoption where they are adopted between the ages of 10 and 12 or children up to the age of 16 for as long as they have a disability or long-term illness.
- Also protects Employees who care for their spouse, civil partner, cohabitant, parent or grandparent, brother or sister of the Employee or any person, other than in one of the categories above, who lives in the same household as the Employee
- Minimum 6month continuous service requirement,
- A gap in employment with a specific Employer for a period of up to a period of 26 weeks can be disregarded in calculating the Employee’s period of service.
- Birth Certs / Certificates of Placement must accompany requests.
- The Employer has 4 weeks to consider a request – can be increased to a maximum of 8 weeks.
- Employers can terminate the arrangement on one of the grounds set out in the Bill
The right to request flexible working arrangements for parents and carers is a new category of leave provided for by Section 8 of the Bill and inserts a new Part IIA in the Parental Leave Act 1998.
This right extends to:
- An Employee who is a relevant parent of a child and who will be providing care for that child for the purpose of providing care for that child up until the child turns 12 unless the child is the subject of an adoption Order where the order was made after the child turns 10 but before they turn 12 in which case the arrangement shall end no later than 2 years beyond the date of the making of the Order.
- If the child has a disability or a long term illness then the arrangements can extend to when the child reaches the age of 16 or to whenever they cease to have that disability or long term illness whichever occurs first.
- An Employee who is or who will be providing personal care or support to a person for the purpose of providing care for that person;
The qualifying relationships include:
- A person of whom the Employee is the relevant parent
- The spouse or civil partner of the Employee
- The cohabitant of the Employee
- A parent or grandparent of Employee
- A brother or sister of the the Employee
- A person, other than in one of the categories above, who lives in the same household as the Employee
and is in need of significant care or support for a serious medical reason.
This right to request flexible working arrangements under this Act only extends to employees who have 6 months continuous employment with the Employer to whom the request is being made.
A gap in Employment with a specific employer for a period of up to a period of 26 weeks can be disregarded in calculating the Employee’s period of service.
Requests to look after a child must be accompanied by a copy of the child’s birth cert or In the case of an adopted child the Certificate of Placement within the meaning of the Adoptive Leave Act.
The Employer who receives a request from an Employee for flexible working arrangements must consider the request having regard to their needs and the Employee’s needs and revert within 4 weeks with their response or where the 4week timeframe is proving difficult no later than 8 weeks from the date of the request.
The Employer shall be entitled to terminate a flexible working arrangement where they are satisfied that the arrangement is having or would have a substantial adverse effect on their business due to
- Seasonal variations in the volume of work
- Unavailability of a replacement
- The nature of the duties of the Employee on leave
- The number of Employees
- The number of Employees on a flexible leave arrangement
- Any other mater relevant to the substantive adverse effect on the business.
An Employee can also request an early return to their earlier working arrangements and should they so wish they ought to do so in writing. Regardless of how the termination of the arrangement comes about – i.e. whether by the agreed timeframe or on foot of an early return the Employee shall be entitled to return to the original working arrangements they held prior to the commencement of their leave.
Where the Employer has reasonable grounds for believing the employee is abusing the flexible work arrangement they shall be entitled to terminate the arrangement by way of notice in writing to the Employee advising them of the termination and the reason(s) for same.
Right To Request A Remote Working Arrangement
Key Features
- No longer in a standalone Bill
- 13 grounds of objection have been abolished.
- New test = needs of employer, needs of employee & the Code of Practice.
- Code of Practice has yet to be drawn up – it will set out guidance for compliance with the application process.
- Qualifying period of service = 6 continuous months with the Employer to whom the request is being made
- Requests must be in writing; be signed by the applicant Employee; contain the reasons for the request; details of the proposed remote working location and information as may be specified in the Code as to the suitability of the proposed location.
- An Employer has 4 weeks to conder the request – this can be extended by a further 4 weeks.
- Penalising a Employee for exercising their entitlement to request remote working is expressly prohibited
The initial legislative provisions for remote working for general Employees were contained in the Right to Request Remote Working Bill 2022. It was met with significant criticism from Employee representative groups due to the presence in the Bill of 13 grounds of refusal of a request for remote working. These grounds were so wide, it was argued, that they effectively rendered the right meaningless. Criticism was also levelled at the fact that a complaint to WRC on the matter could only be pursued on procedural rather than substantive grounds.
The right to request remote working arrangements is now contained in Section 20 of this Bill. Employees must be in the job for more than 6 continuous months before they can make the request. The request must be in writing, be signed by the Employee seeking the arrangement and set out the specifics of the proposed arrangement. It must set out the date of commencement of the arrangement and where applicable the date of expiration.
Requests must be submitted as soon as reasonably practicable but not later than 8 weeks before the proposed commencement date.
It must also, having regard to the Code of Practice provided for in Part 4 of the Bill – but not yet drawn up – specify
- the reasons for the request
- the details of the proposed location
- information as may be specified in the Code (of Practice) on the suitability of the proposed remote working location.
The Employer may seek additional information as may be reasonably required to that furnished above.
The Employee may withdraw the request before the Agreement is signed by both parties.
The 13 grounds of refusal of a request for remote working – as contained in the Right to Request Remote Working Bill – have been abandoned and replaced with a simpler provision which requires the Employer to consider these requests for remote working having regard to:
- the Employer’s needs
- the Employee’s needs
- the requirements of the Code of Practice.
The Employer has as long as is reasonably practicable but no longer than 4 weeks from the date of receipt of the request to respond to it by way of approval or refusal and in the case of a refusal to specify the reasons for same. If the Employer is having difficulty assessing the viability of the request the response time can be extended to 8 weeks.
As with the flexing work arrangements, the employer can, having regard to their own needs, the Employee’s needs and the Code of Practice terminate by notice in writing to the Employee the remote working arrangements on the following grounds:
- Seasonal variations in the volume of work
- Unavailability of a replacement
- The nature of the duties of the Employee on leave
- Any other matter relevant to the substantive adverse effect on the business.
Where the Employer is minded to give notice to terminate the arrangement, they must inform the Employee of their intention to do so and afford the employee the opportunity to revert within 7 days of receiving the notice setting out their response to the proposed termination
The said Notice terminating the arrangement must indicate to the Employee that they may, within 7 days from the date of receipt thereof, make representations to the Employer in relation to the proposed termination and any representation within the 7 days must be considered before the Termination Notice issues.
The Employer and Employee can agree to changes to their arrangement.
The Employee can seek an end to the arrangement and a return to their previous working regime. If they do, the Employer must consider same having regard to their own needs, the employee’s needs and the Code of Practice. The Employer has upwards of 4 weeks to consider the employee’s request to end the arrangement. Upon the expiration of the employee’s remote working arrangement, the employee is entitled to return to their pre- remote working arrangements.
Where an Employer has reasonable grounds for believing the employee on a remote working arrangement is not discharging all of their duties in accordance with the terms agreed for the arrangement the Employer may by notice in writing terminate the arrangement; which notice shall include the reasons for the termination and state the date of return to in-office work.
Where the Employer has decided to issue a termination notice they shall issue to the employee a Notice of Intention to terminate the arrangement and the Employee can, within 7 days of the receipt of such a notice make representations to the employer in relation to the proposed termination and if they do make such representations, the Employer must consider them before issuing the Termination Notice.
The Bill specifically prohibits the Employer from penalising a Employee for exercising their entitlement to request remote working.
Brian Gill, Partner, is Head of Commercial Litigation and Employment Law at Callan Tansey Solicitors. If you have any questions about the Work Life Balance Bill and how it may impact you or your business you can contact Brian at BGill@callantansey.ie