19 April 2023
Employment law continues to evolve with the recent enactment of the Work Life Balance and Miscellaneous Provisions Act 2023 (the “Act”). The Act gives effect to Directive (EU) 2019/1158 on work-life balance for parents and carers.
The Act introduces several new employment law provisions and will likely be of most interest to employers and employees in respect of the entitlements it provides regarding:
The Act also makes some important amendments to maternity protection legislation.
The Act provides the statutory basis for remote working requests (as opposed to any automatic right to remote working). The concept of remote working is broadly captured in its definition as an arrangement whereby some or all the work ordinarily carried out by an employee at an employer’s place of business under a contract of employment, is provided at a location other than at the employer’s place of business, without change to the employee’s ordinary working hours or duties.
The Act specifies a request process which includes a service requirement, notice requirements, and outlines the process which an employer should follow on receipt of a request for remote working. This includes an obligation on employers to consider requests having regard to the employer’s needs, the employee’s needs, and the requirements of the code of practice (which has yet to be issued by the Workplace Relations Commission (“WRC”)).
Flexible working arrangement requests will have to be considered by employers. These are requests for a working arrangement where an employee’s hours or patterns are adjusted, including using remote working arrangements, flexible working schedules or reduced working hours.
Employees with children up to the age of 12 (or 16 for children with long term illness or disability) or those with caring responsibilities for certain prescribed persons can request flexible working arrangements for those caring purposes. The Act specifies a request process which includes a service requirement, notice requirements, and outlines the process which an employer should follow on receipt of a request for a flexible working arrangement.
Employers on considering such requests should have regard to their needs, the employee’s needs and issue a decision on the request either approving it (and entering into a signed agreement reflecting the details, date, and duration of the arrangement), or refusing the request by written notice outlining the reasons for refusal.
The processes and the reasons for refusals to either remote working or flexible working arrangements should be carefully considered by employers however, the Act does not provide for the adjudication bodies (the WRC or Labour Court on appeal) to assess the merits of the employer’s decision, including for the refusal or termination of the arrangements. The relevant code of practice should provide further guidance to employers in respect of the decision process.
Claims in relation to these new provisions can be taken to the WRC (and on appeal to the Labour Court). Directions for compliance with certain provisions of the Act may be issued and/or awards of compensation of up to 20 weeks’ remuneration in respect of flexible working arrangement claims, and up to four weeks’ remuneration in respect of remote working related claims.
The Act provides for new leave for medical care. Employees can avail of unpaid medical care leave of up to five days in a 12-month period to provide care to certain prescribed people.
The Act also provides paid leave of up to five days in a 12-month period for an employee who has or is experiencing domestic violence, or to assist certain prescribed persons who have or are experiencing domestic violence with access to services and advice. The Act makes Ireland one of the first countries to introduce domestic violence leave. The rate of pay for this leave has yet to be determined.
The Act amends the Maternity Protection Act 1994 (as amended) by extending the period in which employees are entitled to paid time off work for breastfeeding, increasing it from six months to two years from the date of birth of the child. The Act also removes reference to “female employee only” allowing transgender male employees who have given birth access to maternity leave.
Certain ministerial orders are required to commence certain parts of the Act. We also expect to see a code of practice from the WRC in the coming months. In the meantime, we are assisting employers to familiarise themselves with the Act and consider how the new requests and leave provisions can be reflected in their policies and procedures.
Should you need any assistance in this regard, please contact a member of the KPMG Law LLP Employment Law Team.
