Juggling work and life is probably on top of every working person’s agenda, second only (sometimes) to financial reward. Long before the pandemic upended any prospect of clear lines between work and life, the EU published a Directive on work/life balance.

Ireland had three years to reflect on how best to achieve the initiatives in the Directive, but unfortunately the legislative platform to launch this well-intentioned Directive has not yet been enacted despite passing the August 2022 deadline for implementation. Trundling through the legislative process, we review the most recently published Work Life Balance and Miscellaneous Provisions Bill 2022 (the “Bill”), published on 8 November 2022. The Act is promised before the end of the year. However, following last week’s sensible announcement from the government, we now know that the requests for flexible and remote working will all be included in one piece of legislation and one Code of Practice. Although missing from the previous version of the Bill, the latest publication has re-inserted the government’s initiative to introduce paid domestic violence leave.

What is the purpose of this Bill? ⚓︎

• Promote a better work life balance for parents and carers
• Encourage more equal sharing of parental leave between men and women
• Improve the representation of women in the labour market

In Ireland, we are already well ahead of the curve with many of the provisions in the Directive, such as the paternity, parental, force majeure and carer’s leave well-established and fully functioning. This article focuses on the new provisions the Bill will introduce in Ireland and excludes an analysis of the right to request remote working, which will eventually be subsumed into this legislation.

Proposed changes ⚓︎

Breastfeeding

The Bill will extend the entitlement to paid time off for breastfeeding employees from 26 weeks to 104 weeks after the birth of a child. In addition, amendments to the wording of the Maternity Acts will mean that transgender males who become pregnant will also be able to benefit from the entitlement.

Leave for medical care purposes

The Bill provides employees with a right to take up to five days unpaid leave in any 12-month period to provide personal care or support to a certain number of people, such as immediate family members or people living with the employee. The person requiring the support must need significant care or support for a serious medical reason.

This benefit is different, and in addition to, the existing rights of employees to take paid Force Majeure leave.

Employees will need to follow a prescriptive process to avail of this benefit, including the provision of a statement of facts about the basis for the reason for leave. The Bill also includes direction for employers around their obligations to reply to requests and the extent of information that an employer can seek about the reason for the absence. Of note is that the Bill permits an employer to ask the employee for a medical certificate (or other evidence as may reasonably be required) about a third-party non-employee.

Flexible working arrangements

One of the most appealing new provisions for employees in the Bill is the opportunity for certain eligible employees to apply to work flexibly. Employees with 6 months’ service and providing care to children under 12 (or under 16 for children with long-term illness or disabilities) or providing care to a qualifying person who needs significant care or support for a serious medical reason, can apply.

A summary of the process as currently drafted is as follows:

Application

• The leave must be related to the provision of care to a child or qualifying person who needs significant care or support
• The application should be in writing and signed
• Include information about proposed flexible working arrangement, date of commencement and duration
• 8 weeks’ notice from the employee
• Employer may request information about:
  • Relationship with the person for whom the request relates
  • Nature of the significant care or support required
  • Relevant evidence (potentially including a medical certificate about a third party) about the application

Time limits and postponements

• Employers must reply in 4 weeks (with potential to extend to 8 weeks)
• A signed written agreement detailing the arrangements must be prepared
• Postponement of 6 months permitted in certain circumstances and following consultation with the employee
• Possible further 6-month postponement in very limited circumstances (eg. Seasonal variation in the volume of work)

Changes/ early return to normal working arrangements

Flexible working arrangements should be flexible. Employers and employees can agree to variations on the proposed start date, the duration and the way in which the flexible working arrangement was originally agreed.

In addition, if an employee wishes to return to the original working arrangements, they can serve a written notice setting out their application and proposed start date. An employer has 4 weeks to review the application. As currently drafted, an employer can refuse to allow an employee to return to their original working arrangements early, but on the expiration of the duration in the written agreement, the employee will be entitled to return to their original working arrangements.

Employers will be able to terminate a flexible working arrangement on seven days’ notice, where they have reasonable grounds to believe that the flexible working arrangement is not being used appropriately.

Domestic Violence leave

Domestic violence leave is not something provided for in the Work/Life Balance Directive. An unusual (but commendable) addition to a piece of legislation promoting work/life balance, the most recent Bill proposes up to 5 days paid leave (in any rolling 12 month period) for an employee who has, or currently is experiencing, domestic violence. The purpose of the leave is to enable the victim (or the person close to them to assist the victim), to seek medical attention, professional services or to relocate temporarily or permanently. Additional Regulations will be established to quantify an employee’s rate of pay per day of leave. This sum will be capped at a maximum daily amount.

Employees will be required to inform their employers as soon as is reasonably practicable that they are taking domestic violence leave, providing the employer with the dates of the leave taken only. No further information or documentary evidence will need to be supplied.

Redress ⚓︎

Employees may seek relief from the Workplace Relations Commission, where an employer has failed to comply with their obligations under the proposed legislation. The Bill introduces the concept of compensation not exceeding 20 weeks’ remuneration (aligned to the level of compensation available under English laws).

What happens next

Employees are actively seeking flexible (and permanent remote) working arrangements. Without final legislation, it is unclear as to the precise way in which the law will work. It is clear that flexible working will only be available to a limited cohort of employees, but remote working will be more widely accessible to employees. It is likely that progressive thinking employers will be open to flexible working for all employees. Employers can take an approach aligned to the spirit of the intended legislation until such time as there is a final act. In our view, the Directive must be implemented with baseline requirements.

Employers would be well-advised to keep one eye on the provisions of the Directive and Bill in managing requests for medical leave for caring purposes and flexible working arrangements until then. The legislation and Code of Practice will be very welcome in the coming weeks.