Remote/Flexible/Domestic Violence Leave ⚓︎

1. How will that work for specialist (e.g., Nursing, Doctors, etc.) if it applies to all workers?

[I believe this relates to right to request flexible working]

The Work Life Balance and Miscellaneous Provisions Bill 2022 provides that employees have the right to request remote/flexible working. This is simply a right to request, i.e., an employer may refuse.

2. If someone is injured at home, who is liable?

Presumably where the injury is work related, e.g., tripping over a laptop charger.

Relevant legislation: Safety, Health, and Welfare at Work Act 2005.

‘Place of work’ is defined as any place where work is carried out, whether occasionally or otherwise – this suggests that an individual’s home office, or indeed kitchen table, can be considered a place of work for the purposes of the legislation. ‘Accident’ is an incident which results in injury, which is carried out in the course of employment. Furthermore, ‘personal injury’ is defined as one which is ‘attributable to work.’

This interpretation of the legislation suggests that where an employee is working from home and is acting in the course of their daily duties as an employee of the company, the employer will be liable for injury suffered, notwithstanding that it did not occur on employer premises… all assuming the relevant employee has received permission to WFH.

It is the employer’s Employers Liability insurance policy that would come into play here. Therefore, employers need to liaise with their insurers about working from home arrangements, to make sure their insurers are on board with any changed working arrangements.

3. Will all the leave under the Miscellaneous Provisions Bill (carers leave and medical related leave) be unpaid?

Under the Work Life Balance and Miscellaneous Provisions Bill, it currently states that leave for medical care will be unpaid, however domestic violence leave under the Bill will be paid for by the employer. The bill provides for Ministerial Regulations to be introduced prescribing a rate of pay for this leave but no Regulations have been published to date.

4. Could these new policies be put in a staff handbook where contract refers to staff handbook, instead of new contract or addendum letter?

There is no legal requirement, currently, to have these new leaves outlined in a staff handbook. However, working arrangements must be outlined correctly in employee contracts of employment and letters of addendum.

5. Do the new legislative changes require us to revise existing employee contracts or is it just for new contracts being issued going forward?

Existing contracts can be amended by letters of addendum – new contracts issued should correctly outline the agreed working arrangements.

6. If we update the handbook with any new legislation, do we still need to adjust contract/letters of addendum? Same as question 4.

7. Do we have any idea when the remote/flexible legislation will be passed?

A matter of opinion… It was anticipated to be passed before the end of 2022 – inclined to think that it will not be long now. It is currently at committee stage, which will be followed by report stage (where amendments will be considered), and finally signed into law after final stage.

8. What about staff that are refusing to attend the office due to anxiousness still of COVID and caring for vulnerable parents?

Firstly, an employer should consider the reasons the employee is giving for this refusal, and work with the employee to attempt to alleviate these concerns. Considering there are no longer any Government restrictions relating to coming into the office, employees can be asked to return to the office.

Perhaps an employer could take a more flexible approach towards an employee who is caring for vulnerable relatives, as this employee could be facilitated by taking carer’s leave, for example. However, where an employee is refusing to attend the office due to mere anxiousness, and any medical issues relating to the employee have been ruled out, employers may have to take a harder line with employees and look at disciplinary processes where appropriate.

Additionally, it is worth noting that employees, under the new legislation, will have the right to make a request for remote working. Employees who are refusing to come into the office should first make such a request.

9. If a company issues an updated company policy on Flexible Working including Remote and Hybrid working and there is a reference in every person’s contract that their contract includes all company policies and changes to such policies does this suffice as against issuing a separate letter of addendum?

Policies do not set out specific working arrangements of an employee – where an employee has made a request in compliance with a policy and has been granted a new working arrangement, that new arrangement needs to be recorded as it is a change to their existing working arrangements and the best way to do so for existing employees is by way of a letter of addendum.

10. Is there any guidance in terms of remote employees now wishing to temporarily work remote outside of the State e.g., working 1 month from another EU country per year?

As discussed in webinar – this poses its own issues from a tax perspective. Where a company is not set up in this country that the employee is working from, it could be perceived as having established itself in said country (a ‘permanent establishment’) if the employee is completing contracts etc. – company profits could then be liable to tax in this host country.

Potentially no issues where an employee is seeking to work remotely from a country where the company already has an establishment. This is a matter to be addressed on a case-by-case basis as no two situations are the same.

Organisations can also look at “employers of record” where they wish to facilitate remote working abroad and where they do not have a permanent establishment.

11. Where did you say the right to request for Flexible work post parental leave emanates from, please?

It is contained in an amendment to the Parental Leave Act 1998,  which states as follows;

Right to request changes when returning from parental leave.

15A. (1) An employee who exercises or proposes to exercise an entitlement under section 15 may request, in accordance with subsection (2), changes to his or her working hours or patterns, or both, to apply for a set period of time following his or her return to work.

(2) An employee who proposes to request changes referred to in subsection (1) shall, as soon as reasonably practicable but not later than 6 weeks before the proposed commencement of the set period concerned, give to his or her employer a request in writing signed by the employee, which shall specify the nature of the changes requested and the date of commencement and duration of the set period requested.

(3) An employer who receives a request made in accordance with subsection (2) shall consider that request, having regard to his or her needs and the employees needs and, as soon as reasonably practicable but not later than 4 weeks after such receipt, shall—

(a) inform the employee in writing that the request has been refused, or

(b) comply with subsection (4).

(4) An employer complies with this subsection where he or she and the employee concerned prepare and sign an agreement setting out—

(a) the changes to the employees working hours or patterns, or both, as the case may be, and

(b) the date of the commencement and duration of the set period,

as may be agreed between them.

(5) An employer shall retain the agreement referred to in subsection (4) and shall give a copy of it to the employee concerned who shall retain it.

(6) Before the date on which an agreement referred to in subsection (4) is signed, the employee may, by notice in writing signed by him or her and given to the employer, revoke a request under subsection (2) given by him or her.]

Retirement ⚓︎

1. How long can an employee work on for?

Where there is a mandatory retirement age, and an employee wishes to work beyond that age, they can be allowed to do so under a fixed term or specific contract of employment. Such contracts are governed in turn by the Fixed Term Workers legislation which provides that an employee cannot be kept on successive fixed term contracts for more than 4 years, following which the employee is entitled to a contract of indefinite duration. Therefore, our advice would be that a retired employee should be allowed to remain on for one year or two years but no longer.

2. If there is a contractual retirement age (65) in contracts, how should we proceed?  Is it inappropriate to enforce this?

No, if the employer can objectively justify a mandatory retirement age, it can be enforced. If an employee applies to work beyond the mandatory retirement age, then the employer should consider such requests in accordance with the WRC Code of Practice on Longer Working.

3. Is service considered continuous if the employee is issued with a fixed-term contract after they retire from their perm contract?

No, they have retired from their employment and their fixed term contract commences from day one of that contract, and not their original start date.

4. With reference to case law in the area of retirement, what types of objective justification have been accepted by the courts?

What constitutes objective justification is determined on a case-by-case basis. The WRC Code of Practice on Longer Working outlines examples of what could be considered a legitimate aim by an employer in setting out a compulsory retirement age: intergenerational fairness; motivation and dynamism through the increased prospect of promotion; health and safety; creation of a balanced age structure in the workforce; personal and professional dignity; succession planning. Past case law is also indicative of what could be a successful objective justification…

Judy Bamford v Citizen’s Information Phone Service Limited – responded argued justifications of intergenerational fairness, succession planning, promotional opportunities for younger staff.

A Senior Staff Nurse v A Nursing Home – retirement age seemed to be based solely on the claimant’s date of birth – not objectively justified by a legitimate aim.

Saunders v CHC Ireland Limited – retirement age of 55 was objectively justified by health and safety concerns (an individual’s physical capabilities decrease with age and so the retirement age was upheld).

5. Is service broken or continuous if a FT contract is issued at age 65? Broken if they have retired and then commenced on a fixed term contract.

6. If a contract states that you must retire at 65 or day before 66th birthday and they ask not to leave, can you give them a fixed term contract for a year or two years only?

Yes, a one year or two-year FTC can be given to such an employee – however, employers must remember that in order to issue a FTC, its fixed nature must be objectively justified by a legitimate aim. Employers must ask themselves why an indefinite contract is not being issued and gather the relevant evidence to back this up in the case of a claim being brought.  All applications should be considered in accordance with the provisions of the WRC Code of Practice on Longer Working.

7. If you grant an extension beyond your NRA of 65, can you determine different T&C's for pension or need to continue same entitlements to ensure equal treatment? Pension DC Master Trusts can go to age 70, previously had to offer PRSA and gave different employer contribution?

This can only be determined in accordance with the specific Rules of a Scheme and specific advice should be sought from pension providers.

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And ... as promised, please find updated leave tables below:

Statutory Leave ⚓︎

Proposed Leave ⚓︎

Please find previous table (from 2020) below:
https://www.legal-island.ie/articles/ire/features/how-do-i-handle-it/2020/oct/parents-leave-how-do-i-handle-it/