Dealing with Force Majeure requests – not as straightforward as one might think!
Locations
Force Majeure leave is a statutory entitlement for employees to take time off work due to urgent family emergencies, specifically for the injury or illness of a close family member where their immediate presence is indispensable. Employees are entitled to a maximum of 3 days of paid leave in any 12-month period or 5 days in any 36-month period.
Requests for this leave may not come up for employers very often, however, when it does, it can be difficult to decipher and to decide if the circumstances truly amount to a Force Majeure situation.
In a recent Labour Court case (see here), which was heard on appeal from the Workplace Relations Commission (WRC), the Complainant employee was granted one day of Force Majeure leave for 21 May 2024, after his wife suffered a miscarriage. His wife was discharged just after midnight that day. He consequently applied for Force Majeure leave on 22 and 23 May, in addition. The CEO of the Respondent rejected the application for Force Majeure leave relating to 22 and 23 May, saying that the leave could not be taken consecutively and also as the employee had prior knowledge of the absence at that stage. The Complainant’s position was that the emergency was very much ongoing.
The Complainant brought a claim to the WRC and Labour Court contending that he was entitled to Force Majeure leave for the following two days, 22 May and 23 May, also.
The Labour Court found that the employee's immediate presence was still required on 22 May, and 23 May 2024 due to his wife's ongoing medical situation and that his presence with her was indispensable as she required additional support and medical care. The Labour Court awarded €2,500 to employee, varying the €7,000 award made to the employee at the WRC.
Generally speaking, the question of whether an employee's immediate and indispensable presence is / was required will be a matter of fact that can only be determined by looking at the circumstances pertaining at the time of the request, and such requests should be decided and treated by employers on a case-by-case basis and with extreme care.
The above is for general guidance only and is not intended as professional advice. Advice should always be taken before acting on any of the issues identified.
Written by: Greta Siskauskaite and Barry Walsh