In this month's First Tuesday Q&A, Matthew McGrogan, Solicitor in A&L Goodbody's Employment Practice Group, provides an overview of the recently introduced Work-Life Balance and Miscellaneous Provisions Act 2023.

When was the Act introduced?

The eagerly anticipated Work-Life Balance and Miscellaneous Provisions Act 2023 (the Act) was signed into law on 4 April 2023.

What is the purpose behind the new Act?

The Act was introduced in order to give effect to elements of the EU Work-Life Balance Directive (the Directive), which seeks to achieve gender equality by promoting the participation of women in the labour market and the equal sharing of caring responsibilities between men and women, which, it is hoped, will in turn contribute to the closing of the gender pay gap.

In addition to the requirements of the Directive, the Act also introduced a number of significant new workplace entitlements, including the right to request remote working arrangements, and a right to paid domestic violence leave.

What are the key changes being introduced?

The key elements of the new Act are as follows:

• A right for all employees to request remote working arrangements;
• A right for parents and those with caring responsibilities to request flexible working arrangements;
• A right to take up to 5 days unpaid leave per year for medical care purposes;
• A right to take up to 5 days paid leave per year for victims of domestic violence;
• A significant extension to the period in which new mothers are entitled to paid time off work to breastfeed (from 6 months to 2 years) and; and
• An amendment to existing maternity protection legislation to ensure transgender males who have obtained a gender recognition certificate and subsequently become pregnant fall within its scope.

What are the main implications of the right to request remote working?

All employees will now have a right to request a remote working arrangement. Notably, there will be a qualification period of six months’ continuous employment before an employee will be entitled to commence the requested remote working arrangement.

Employees must submit requests for remote working at least eight weeks before the proposed commencement of the arrangement. The request must set out certain details of the requested arrangement, such as the proposed date of commencement, and where applicable, the date of expiration of the arrangement.

The employer must respond to the request no later than four weeks after the request has been made, but this period may be extended by up to eight weeks if the employer is having difficulty in assessing the viability of the request. In responding to the request, the employer must consider the needs of both parties and the provisions of a Workplace Relations Commission Code of Practice (which has not yet to be published). If the request is approved, the employer and the employee must enter into an agreement setting out the details of the arrangement and the date of commencement and expiration (if applicable) of the arrangement. If refusing the request, the employer must provide reasons for that refusal.

The Act provides for a process under which employers may terminate the remote working arrangement if it is having a substantial adverse effect on the operation of the employer’s business or there is abuse of the arrangement. However, in doing so, the employer must first give written notice to the employee summarising the grounds for terminating the arrangement, and stating that an employee may make representations to the employer within 7 day of receipt of the notice. The employer must consider these representations before terminating the arrangement.

What are the consequences if an employer fails to adhere to the new requirements?

Failure by the employer to comply with its obligations to consider a request for remote working may result in the WRC directing an employer to comply with the relevant sections of the Act, and/or awarding compensation of up to 4 week's remuneration to the employee.

Significantly, the WRC is not entitled to consider the "merits" of any decision made by the employer to refuse a request (including the reasons for reaching their decision) or the decision to terminate the remote working arrangement.

In what circumstances can an employee request flexible working arrangements?

Separate to the right to request remote working, the Act has also introduced a new right for certain employees to request flexible working arrangements for caring purposes.

Employees who have a child up to the age of 12 (or 16 if the child has a disability or long-term illness) and employees who are caring for a relative (as prescribed in the Act) or someone they live with and who is in need of significant care or support for a serious medical reason will have the right to request flexible working arrangements for a particular period. Flexible working is defined under the Act as an arrangement where an employee’s working hours or patterns are adjusted, including through the use of remote working, flexible working schedules or reduced working hours.

As with the right to request remote working, there will be a qualification period of six months' continuous employment before an employee is entitled to commence the requested arrangement. The approval and termination requirements are also broadly similar to the right to request remote working requirements.

What are the consequences if an employer breaches the requirements in respect of managing an employee's flexible working request?

The WRC may award up to 20 weeks' remuneration and/or direct the employer to comply with the requirements of the Act.

Again, the WRC is not entitled to consider the "merits" of any decision made by an employer to refuse a request (including the reasons for reaching that decision), or the decision to terminate the flexible working arrangement.

In what circumstances can an employee take leave for medical care purposes?

The Act has also introduced a new form of leave, referred to as "leave for medical care purposes".  All employees will have an entitlement to 5 days of unpaid leave per year where the employee needs to provide personal care or support to a family member, or person they live with, and who is in need of significant care or support for a serious medical reason. Unlike the new rights referred to above, there is no minimum service requirement to commence this leave.

Employees must, as soon as is reasonably practicable, confirm to their employer in writing that they have taken or intend to take this leave, the date of commencement, duration and a statement of the facts entitling the employee to the leave.

Employers can request that an employee provide information where they are taking medical care leave, including about the employee's relationship with the person concerned, the nature of the personal care or support to be given to that person, and relevant evidence of the need of the person to the care and significant support (which includes a medical certificate).

What does the Act say about domestic violence leave?

The Act introduces a new form of protected leave, described as "domestic violence leave". All employees will have a right to take up to 5 days’ paid domestic violence leave per year. The purpose of the leave is to enable the employee, on their own behalf or in respect of a relevant person (as specified in the Act) to, for example, seek medical attention or legal assistance, obtain support from victim services, counselling or relocate temporarily or permanently.

If an employee has taken domestic violence leave they must, as soon as reasonably practicable send a notice to their employer confirming they have taken this leave, and specifying the dates on which it was taken.

The leave will be the subject of a further regulation to prescribe the rate of domestic violence leave pay.

Do the provisions of the Act take effect immediately?

No. While it has been signed into law, the provisions of the Act require a number of commencement orders in order to take effect. It has been indicated that some elements of the Act, such as medical care leave, and the extension of the entitlement to take breastfeeding breaks, will commence within a matter of weeks. However, other provisions, including the right to request remote and flexible working and to take domestic violence leave, are expected to be commenced at the end of the Summer/early Autumn. These provisions will also require a WRC Code of Practice to be published (which will provide practical guidance for employers on how best to consider and properly manage requests) and/or further regulations before they can commence.

Employers should therefore begin to familiarise themselves with the new Act, and should take steps to ensure they are ready to comply with the requirements in respect of medical care leave and time off for breastfeeding. Employers should also keep an eye out for the WRC Code of Practice, which, once published, should provide helpful guidance, and will need to be considered in connection with the preparation or amendment of remote or flexible working policies.

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