Work Life Balance and Miscellaneous Provisions Bill 2022 goes to the President to be signed into law
The Work Life Balance and Miscellaneous Provisions Bill 2022 passed both Houses of the Oireachtas on 29 March 2023 and will now go to the President to be signed into law. Although we await the Act being passed into law and commenced, the text of the Bill is now finalised which will allow employers to update their policies and procedures.
As previously outlined (here), the Act, once law, will transpose the EU Directive on work-life balance for parents and carers, and introduces some significant new rights intended to allow employees to improve the balance between their work life, and family life and caring responsibilities. Following substantial amendments (here) as it moved through the legislative process, the Act now also provides for a right to request remote working that is not limited to employees with parental or caring responsibilities, and a statutory paid leave entitlement of five days to support those who are victims of domestic violence.
The Act provides that the Minister may give a direction to the Workplace Relations Commission to draft a Code of Practice for the purpose of practical guidance to employers and employees in relation to: the right to request flexible working for caring purposes and the right to request remote working arrangements. This Code of Practice appears as a mandatory consideration for both employers and employees in the Act. The Minister, during recent debates, has referred to the Code on numerous occasions, stating that it “has to be drafted by the WRC” and that its introduction will further strengthen the rights of employees by providing guidance on decision making that employers must abide by. However, no statement has been made as to when it is anticipated the Code will be published.
The main points of the Act are summarised below.
Leave for medical care purposes
The Act contains a new entitlement for employees to up to 5 days unpaid leave (in any period of 12 consecutive months) for medical care purposes, to provide personal care or support to certain specified persons, including: a child, spouse/civil partner, cohabitant, parent or grandparent, brother or sister or a person who resides in the same household as the employee, where any of those persons is in need of significant care or support for a serious medical reason.
For the purposes of the Act, a person is considered to be “in need of significant care or support for a serious medical reason”, where, owing to a person’s disability, injury or illness, they require such care and support that includes the presence of the employee at the place where the person is. There is no service requirement needed to avail of this leave and the leave must be taken in periods of at least one day.
An employee who has taken or intends to take leave for medical care purposes must as soon as reasonably practicable provide a signed confirmation of this to their employer. This confirmation must specify the date and duration of such leave and a statement of the facts entitling the employee to the leave. Their employer, on receipt of such confirmation, can request that the employee provide further information in relation to the employee’s relationship with the person who required care, the nature of the care required and relevant evidence relating to the need for significant care.
Domestic Violence Leave
The Act contains a new entitlement for employees to five days paid leave (in any 12 consecutive month period) known as “domestic violence leave”. Employees can avail of this leave where they, or a “relevant person”, have experienced, or are experiencing, domestic violence; and the purpose of the leave is to enable them to take certain actions or avail of relevant services or assistance in relation to that domestic violence, on their own behalf or on behalf of the relevant person. There is no service requirement to avail of this leave.
The definition of domestic violence in the Act is violence, the threat of violence, sexual violence and acts of coercive control committed against the employee or relevant person, by their spouse, civil partner, cohabitant, adult child (who is not a dependent person), or someone who is or was in an intimate relationship with them. A “relevant person” for the purposes of the Act includes the employee’s spouse, civil partner, co-habitant, or a person with whom they are in an intimate relationship, as well as a minor child or other dependent person
When an employee takes domestic violence leave, they shall, as soon as reasonably practicable thereafter, confirm to their employer that that they have taken such leave and the dates on which it was taken. The Act requires that an employer pay a prescribed daily rate of pay called “domestic violence leave pay” for each day of such leave taken. The percentage rate of pay is not specified in the Act and will be set by Ministerial Regulation. There were significant concerns raised in the Dáil and Seanad regarding possible difficulties that could be caused to employees by imposing a lower rate of pay for dates on which they took domestic violence leave.
Right to Request flexible working arrangement for caring purposes
The Act provides for a right to request a flexible working arrangement to employees who are parents to children up to age 12 (or up to age 16 if the child has a disability or illness) to provide care to their children, or to employees to provide care to other specified people (as detailed above in the context of leave for medical care purposes) who are in need of significant care or support for a serious medical reason. A “flexible working arrangement” is defined in the Act as a working arrangement where an employee’s working hours or patterns are adjusted, including through the use of: remote working arrangement, flexible working schedules or reduced working hours.
The scope and procedure set out in the Act in relation to flexible working arrangements was set out in detail in our previous briefing here. The only substantive amendment to this part of the Act was the removal of the right of an employer to postpone a flexible working arrangement. This has been replaced with a right to unilaterally terminate the arrangement if the employer is of the view that it is having a substantial adverse effect on the operation of their business, and they comply with the procedural requirements which include giving the employee prior notice and a right to make representations.
Finally, the Act provides that within two years of its commencement the Minister for Children, Equality, Disability, Integration and Youth shall conduct a review of the operation of the right to request a flexible working arrangement for caring purposes, to consider whether the right should be extended to all employees.
Right to request remote working
The Act provides for a right for all employees to request a remote working arrangement. Although there is no service requirement for making such a request, an approved arrangement cannot commence until an employee has completed six months continuous service. A request must specify the details of the proposed arrangement and, having regard to a Code of Practice (as yet unpublished): the reasons for the request (referred to as “the employee’s needs”), and the details of the proposed remote working location.
An employer is obliged to consider an employee’s request for remote working and must have regard to the requirements of the code of practice, as well as the employer’s needs and the employee’s needs. An employer can request such further information from the employee as they reasonably require, however they must respond to the employee no later than four weeks after receipt of the request either: approving the request, refusing the request (with reasons), or notifying the employee that they need an extension of time of up to eight weeks to properly consider it.
As with flexible working arrangements, employers can unilaterally terminate an approved working arrangement on the basis of a substantial adverse effect on the business, or if they think the employee is abusing the arrangement. In this context, “abuse” means the employer is of the view that the employee is not discharging their duties under the agreement. Employers must ensure that they comply with the procedures set out in the Act in all respects when dealing with a request for remote working under the Act.
The Act also provides that employees cannot be penalised for proposing to exercise their entitlements to either request a remote working arrangement, or to request an early return to their original working arrangement.
Remedies and Enforcement
Both in respect of the right to request a flexible working arrangement and the right to request a remote working arrangement, the Act provides that employees can make a claim to the Workplace Relations Commission if of the view that their employer is not fulfilling their obligations under the Act in relation to considering, altering, or terminating their requests or approved arrangements. If an employee is successful in their claim, the WRC (or Labour Court on appeal) can either: direct that the employer comply with the Act, award compensation (not exceeding 20 weeks’ remuneration) in favour of the employee, or both.
In considering such a claim the WRC (or Labour Court on appeal) cannot assess the merits of the employer’s decision, it can only consider if the decision was made in compliance with the requirements of the Act. If the Act is enacted prior to the Code of Practice being published difficulties could arise in this regard, as the Act expressly requires consideration of the Code of Practice in certain respects.
Maternity Protection Acts
The Act makes two important amendments to the Maternity Protection Act 1994. The first is to increase the number of weeks from 26 to 104 weeks during which mothers are entitled to take paid time off work and have reduced working hours for breastfeeding purposes. The second is to ensure that transgender men who have given birth can access maternity leave.
“The Work Life Balance Bill 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 passing of this Bill introduces a statutory entitlement to carer’s leave, the right to request flexible and remote working, and makes breastfeeding breaks a reality for women returning to work from maternity leave.”
Minister Roderic O’Gorman