Work Life Balance – new employee rights on the way
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In announcing the development, the Minister for Children, Equality, Disability, Integration and Youth, Roderic O'Gorman, noted that the legislation “represents a significant advance in workers’ rights in Ireland. It recognises the importance of family life and an improved quality of life for all workers, by supporting employees to achieve a better balance between their home lives and work lives."
The key changes include:
- the right to request flexible working for parents and carers;
- the right to request remote working for all employees;
- 5 days unpaid leave for medical care purposes;
- 5 days paid leave for victims of domestic violence; and
- extension of the period during which women can take breaks to breastfeed from 6 months to 2 years.
These are separate and distinct rights.
The right to request flexible working is for caring purposes. This will initially apply to carers and parents only. A flexible working arrangement includes remote working, flexible work schedules and reduced working hours.
It also introduce a separate right to request remote working for all employees. A remote working arrangement means where some or all of the work ordinarily performed at the employers' place of business is performed at another location without a change to the employee's ordinary working hours or duties.
Who does it apply to?
The right to request flexible working applies to employees who are relevant parents or carers where the purpose of the leave is to provide care to a person who is in need of significant care or support for a serious medical condition. Such persons can include children of the employee, a spouse or civil partner, a cohabitant, a parent, a grandparent, a sibling or any person with whom the employee lives in the same household.
Whereas the right to request remote working will apply to all employees.
There is no service requirement to make either request but the employee must have at least 6 months service before actually commencing a flexible / remote working arrangement (although an employer may waive this).
How should a request be made?
Requests must be in writing and at least 8 weeks before the proposed commencement date and include:
- Details of the requested arrangement; and
- Proposed start date and duration.
Requests for remote working must also include the following information:
- The reasons for the request;
- Proposed remote working location and the suitability of the proposed location
Dealing with a Request / Timeframe to Respond
An employer must consider such requests but is not obliged to grant them.
The employer has 4 weeks to respond (which can be extended by a further 8 weeks if the employer is having difficulty assessing the viability of the request).
When considering a request, an employer must consider the needs of both parties (and not just the business) and must take into account a new Code of Practice on Remote Working (yet to be published but expected later this year).
If approved, an agreement must record the relevant details and be signed by both parties with a copy provided to the employee.
If refusing the request then the employee must receive a written notice with stated reasons. The legislation does not specify the grounds upon which a request may be refused so an employer appears to have broad discretion in this regard. However, the Code of Practice will likely provide guidance on reasonable grounds for refusal.
Early Termination of Arrangement
An employer can terminate an arrangement early where:
- it is having a substantial adverse effect on the operation of the business;
- there are reasonable grounds for believing that the employee is not using the arrangement for the purpose for which it was approved (flexible working); or
- the employer has reasonable grounds for believing that the employee is not discharging all of their duties in accordance with the agreement (remote working).
An employer must consult with an employee for at least 7 days before deciding to terminate the arrangement. Following consultation, the employee is entitled to a further 7 day notice in writing including the reasons for the decision and the termination date. An employee is entitled to return to the original working arrangement held on termination of the agreement. Similarly, an employee may request early return to a previous working arrangement by giving written notice with reasons for the request and the proposed return date.
Medical Care Leave
The legislation also introduces a new statutory right to medical care leave for the purposes of "providing personal care or support" to a relevant person provided that they are "in need of significant care and support for a serious medical reason."
The entitlement is to 5 days unpaid medical care leave in any 12 consecutive months. This is in addition to any paid "force majeure" leave entitlements.
An employee must provide a signed written confirmation including details of the start date, duration and a statement of facts entitling the employee to the leave. An employer may request a medical certificate confirming that the person is indeed in need of such care or such other evidence reasonably required.
Domestic Violence Leave
Ireland will be one of the few countries in the world to offer paid domestic violence leave. Employees who have experienced or are experiencing domestic violence (or assisting a relevant person who has experienced or is experiencing domestic violence) will be entitled to take domestic violence leave for prescribed purposes including seeking medical services; relocating; attending victim services, attending with an Garda Síochána, etc.
The entitlement is to 5 days paid leave per consecutive 12-month period at a rate of pay is yet to be determined by the Minister.
In such situations, the employee must notify their employer as soon as reasonably practicable specifying the relevant dates. Unlike medical care leave, an employee is not required to furnish their employer with a statement of facts nor is the employer entitled to request documentary evidence of domestic violence. This is due to the sensitive nature of the situation and to remove barriers to such applications.
Remedies
In the event of a breach, an employee can complain to the Workplace Relations Commission and, if successful, the WRC can order the employer to comply with their obligations and/or award compensation of up to 20 weeks remuneration (or 4 weeks remuneration in the case of remote working). Interestingly, the WRC has no jurisdiction to assess the merits of or reasons for an employer's decision or reasons provided when determining the level of compensation to award.
Employer Next Steps
While the legislation has been signed into law, actual commencement orders are awaited (anticipated before the summer). We will keep you updated on this. In due course employers should review existing policies and practices to ensure compliance with this important new legislation.
This document is for general guidance only and not intended as professional advice. Advice should always be taken before acting on any of the issues identified.
Written by: Maeve Griffin, Barry Walsh and Craig Farrar