New Work/Life Balance Law

New employment rights for parents and carers came into effect on the 3rd July 2023 pursuant to the Work Life Balance and Miscellaneous Provisions Act 2023 (“the 2023 Act”). Patrick Walshe delves into the new legislation and outlines what is now the law and what is expected to become law in the near future

Breastfeeding Entitlements

The 2023 Act amends the Maternity Protection Acts 1994 to 2022 to extend the period during which employees who are breastfeeding are entitled to take daily breaks or to a reduction in their working hours for the purposes of breastfeeding a child or expressing breast milk – from 26 weeks post-birth to two years (104 weeks) post-birth.

Employees who are breastfeeding are entitled, now for a period of up to 104 weeks post-birth, to either of the following:

• Paid time off work as a break for the purposes of breastfeeding in their place of work for one hour each working day. The daily paid time off can take the form of one break of 60 minutes or as shorter breaks which together make up 60 minutes, as agreed between the employer and employee; or

• A reduction in working hours by one hour each working day without loss of pay for the purposes of breastfeeding outside of their place of work. The reduction in working hours without loss of pay can take the form of one period of 60 minutes or shorter periods which together make up 60 minutes, as agreed between the employer and employee.

Part-time employees who are breastfeeding are entitled to breaks or a reduction in working hours for the purposes of breastfeeding on a pro-rated basis. Employers are obliged to provide appropriate facilities for breastfeeding in the workplace unless to do so would give rise to a cost for employers that is greater than a nominal cost.

Employees who are breastfeeding must give notice in writing to their employer of their intention to exercise their entitlement to take time off from work or have their working hours reduced for the purposes of breastfeeding. Employers are entitled to request evidence of the date of birth of the child of the breastfeeding employee.

Section 3 – New Special Leaves

As referred to, the legislation also makes provision for two new forms of Special Leave:

• Medical Care Leave

This will allow employees to take leave to provide personal care or support to:

• Children;

• Spouses;

• Civil partners;

• Cohabitees;

• Parents;

• Grandparents;

• Siblings; or

• Persons residing in the same house.

It will arise where the other person needs “significant care or support” for a “serious medical purpose”.

The level is fixed at present at five days of leave in any period of 12 consecutive months.

The employer will not have to pay the employee during periods of Medical Care Leave.

At the employer’s request, the employee in question must furnish information that the employer may reasonably require in relation to:

• The employee’s relationship with the other person;

• The nature of the personal care or support required; and

• “Relevant evidence” in relation to the need of the other person for this care/support (in practice, this is most likely to be a medical certificate).

• Domestic Violence Leave

This is also a new form of Special Leave. It will apply where an employee is either experiencing domestic violence now or has in the past.

The purpose of the leave is to allow the employee in question to:

• Seek medical attention;

• Obtain ser vices from a victim services organisation;

• Obtain psychological or other professional counselling;

• Relocate temporarily or permanently;

• Obtain an order under Domestic Violence Act 2018 (such as a Barring Order, Safety Order or Protection Order);

• Seek advice or assistance from a lawyer;

• Seek assistance from An Garda Siochana; or

• Seek or obtain any other relevant service.

Unlike Medical Care Leave, an employer will be required to pay the employee during periods of Domestic Violence Leave – it is intended that a rate of “domestic violence leave pay” will be fixed by Ministerial Order.

Like Medical Care Leave, however, it is capped at five days in any period of 12 consecutive months.

More Employee Entitlements on the Way

The 2023 Act provides for several further additional rights for employees that are expected to come into effect in the coming months.

The concepts of remote and flexible working attracted a great deal of attention in the last few years –especially with the advent of Covid.

• The Government embraced the concept of Remote working, culminating in a draft Scheme being published in 2021.

• Separately, the EU Work Life Balance Directive (2019/1158) was due to be incorporated into Irish law in August 2022. The Directive is primarily concerned with flexible working.

These concepts are relatively distinct – Remote working does not involve any change to terms and conditions of employment except working location. Flexible working can encompass changes to working hours/patterns.

The Government decided that both concepts would be addressed in a single piece of legislation – the Work Life Balance and Miscellaneous Provisions Bill 2022. The legislation will also deal with a number of other topics, including the creation of two new forms of Special Leave (Medical Care Leave and Domestic Violence Leave).

What are the key changes on the horizon?

(a) All employees may request remote working arrangements.

(b) Parents and carers may request flexible working arrangements for caring purposes.

(c) The legislation also creates certain new types of Special Leave.

Section 1 – Flexible working arrangements for caring purposes

What is the purpose of these arrangements? There are two circumstances where flexible working arrangements can be requested:

(a) For an employee to care for a child; and

(b) For an employee to provide personal care or support for medical care purposes.

What is involved in providing care to a child?

An employee who is a relevant parent can request flexible arrangements to care for that child up to the age of 12.

Notably, unlike the second category, there is no requirement for the child to be suffering from an underlying medical condition – the purpose of the legislation is simply to provide care.

There is an exception to the age threshold – if the child has a disability or long-term illness, the threshold is 16 years.

What is involved in providing personal care or support?

The person concerned must be “in need of significant care or support for a serious medical reason”.

An employee can request flexible working arrangements to provide “personal care or support” to any of the following:

(a) A child of the employee;

(b) The spouse/civil partner of the employee;

(c) The cohabitant of the employee.

(d) A parent/grandparent of the employee;

(e) A brother/sister of the employee; or

(f) A person other than the above who reside in the same household as the employee.

What exactly are “flexible working arrangements”?

The legislation defines them as:

“a working arrangement where an employee’s working hours or patterns are adjusted, including through the use of remote working arrangements, flexible working schedules or reduced working hours”.

What does this mean?

In summary:

• Remote working arrangements typically means an arrangement whereby some or all of 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;

• Flexible working schedules are not defined in the legislation. A commonsense approach suggests that this will include a scenario where the employee works earlier or later than their previous working hours. It may, for example, mean that the employer approves a range of hours and the employee decides when to perform their duties within that range. It could also involve condensed working days or weeks. However, and importantly, the legislation is not prescriptive in what is/what is not a flexible working schedule – meaning an employee is free to formulate a proposal.

• Reduced working hours is obviously selfexplanatory.

Could a flexible working arrangement theoretically involve combinations of (a), (b) and (c)?

Yes – the wording of the legislation would allow for this.

For example, an employee working 9-5 five days a week at present in their employer’s premises might seek to work a four-day week going forward, with two of those days worked remotely and starting early/finishing early on the remaining two days.

Is there a service threshold?

An employee must work for an employer for six months before flexible working arrangements can commence (although there is nothing to prevent an employer from allowing arrangements prior to that).

What is the process for making an application?

The application must:

• be in writing;

• specify the form of the flexible working arrangement requested; and

• state the date of commencement and duration.

At the employer’s request, the employee must also provide evidence that they are eligible. In the case of caring for a child, this includes a birth certificate. In the case of caring for medical purposes, this would likely include a medical certificate.

When must the application be made?

At least eight weeks before the proposed start of the flexible working arrangements.

What are the employer’s obligations?

The employer must consider the request “having regard to his or her needs and the employee’s needs”.

The employer must then respond to a request at least four weeks after receiving it.

Where the employer is encountering difficulty in assessing the viability of the request, it may extend the period by eight weeks.

Is there a process if the employer agrees to a request?

There is a simple process – an agreement must be prepared setting out the details of the flexible working arrangement and the commencement date. Both parties must sign it.

Is there a process if the employer refuses a request?

The employer must respond in writing and the response must set out the reasons for the refusal.

Can changes be made to proposed arrangements once agreed?

Yes. The legislation provides that the parties can agree to vary the contents of the flexible working agreement including:

• Postponing the arrangements;

• Altering the period of the arrangements; or

• Any other a greed variations.

Provision is also made for the employee to postpone the arrangements where the employee themselves is unable to provide care by reason of illness or incapacity.

Can arrangements be terminated?

Yes – an employer can terminate in certain circumstances, but there are controls in place. The employer will have to justify termination by reference to “a substantial adverse effect” on the operation of the business by reason of:

• Seasonal variations in the volume of the work concerned;

• The unavailability of a person to carry out the duties of the employee;

• The nature of those duties;

• The number of employees overall;

• Whether any other employees have approved flexible working arrangements in place; or

• Any other relevant matters

The employer, in making a decision, may have regard to its own needs, the employee’s needs and the requirements of any Code of Practice.

The employer will be required to set out in writing why the arrangements are being postponed – and the employee must be given a period of seven days within which to make representations.

Can employees change their minds?

Yes – an employee can request that they be allowed to revert to their original working arrangements (referred to in the legislation as “an early return”). Employers are not obliged to agree to an early return – but they must consider the request having regard to their needs, and the employee’s needs.

Is the employer protected if a flexible working arrangement is abused?

Yes. The legislation is predicated upon the flexible working arrangement being for the purpose of providing care/support.

If an employer has “reasonable grounds” to believe this is not the case, it can terminate the arrangement in writing. The notice of termination must, however, set out the grounds on which the employer relies.

The employer is also obliged to notify the employee in advance of termination and give the employee seven days to make representations. The employer must consider those representations before making a final decision.

Can an employee bring a WRC claim in connection with any of this?

Yes, unsurprisingly, an employee will have recourse to the WRC.

If an employer does not respond to a flexible working request within four weeks (or an extension, as allowed for), the WRC can direct the employer to do so.

The WRC will also have powers to intervene in cases where the employee maintains that their right to a postponement have been contravened. Similar recourse will be available where the employer terminates the arrangement and the employee believes this is unjustified.

The WRC will have the power to award compensation in certain circumstances – but this is capped at 20 weeks’ remuneration.

Can an employee bring a WRC claim to compel an employer to agree to a request?

No. There are no plans to give the WRC the power to direct an employer to approve a request for a flexible working arrangement – the WRC only has the power to direct the employer to respond.

Section 2 – remote working arrangements

What is the purpose of these arrangements?

The legislation will allow any employee to request remote working arrangements (in contrast to flexible working, there is no requirement that the remote working arrangement be for the purpose of providing care).

Is there a service threshold?

The employee must have six months of continuous service before the remote working arrangement can commence.

What is “remote working”?

Under the Bill, “remote working” is an arrangement whereby:

“Some or all of 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.”

How will an application be made?

An application for remote working must:

(a) Be in writing;

(b) Specify the details of the proposed arrangement;

(c) Specify the reasons for the request;

(d) Include details of the proposed location; and

(e) Include details in relation to the suitability of the proposed location.

It is intended that a Code of Practice will be published which will assist employees in making requests.

When must a request be made?

A request must be made at least eight weeks before the proposed start of the arrangement.

What are the employer’s obligations?

The employer must consider the request having regard to:

• His or her needs;

• The employee’s needs; and

• The “requirements” of the Code of Practice already referred to.

Must employers respond within a period of time?

The employer must respond to a request at least four weeks after receiving it.

Where the employer is encountering difficulty in assessing the viability of the request, it may extend the period by eight weeks.

Obviously these periods mirror those applicable to flexible working arrangements.

What happens if an employer agrees?

Where an employer accedes to a request remote working, both parties must sign an agreement that is prepared by the employer setting out:

(a) Details of the arrangements;

(b) Start date; and

(c) Expiration date (if there is one).

Can an employer decline?

Yes. The legislation does not oblige an employer to agree to a proposal – although if refusing, the employer must set out the reasons for refusal in writing, having had regard to:

• His or her needs;

• The employee’s needs; and

• The “requirements” of the Code of Practice.

Can an employer terminate the remote working arrangement?

Yes, an employer can terminate a remote working arrangement if satisfied that it would have or is having a substantial adverse effect on the business by reason of:

(a) Seasonal variations in the volume of work concerned;

(b) The unavailability of a person to carry out the duties of the employee;

(c) The nature of the duties of the employee in the employment; or

(d) Any other matters relevant to the substantial adverse effect on the operation of his or her business professions.

The employer, in making a decision, may have regard to its own needs, the employee’s needs and the requirements of any Code of Practice.

The employer will be required to set out in writing why the arrangements are being terminated – and the employee must be given a period of seven days within which to make representations.

Again, this mirrors the provisions in the legislation relating to flexible working.

Can changes be made to proposed arrangements once agreed?

As in the case of flexible working arrangements, the legislation provides that the parties can agree to vary the contents of a remote working agreement including:

• Postponing the arrangements;

• Altering the period of the arrangements; or

• Any other a greed variations.

An employee can also request an early return to the original working arrangements and the employer must respond within four weeks. The employer is also required to provide reasons if it refuses to agree.

What happens if an employee abuses the remote working arrangement?

The legislation, once again, mirrors the flexible working anti-abuse provisions. A remote working arrangement is predicated upon the employee continuing to discharge all of their duties of employment.

If an employer has “reasonable grounds” for believing that an employee who is on an approved remote working arrangement is not discharging all of their duties, the employer may terminate the agreement. The same seven-day right to make representations applies as in the case of flexible working.

Involvement of the WRC

Again, employees will have recourse to the WRC – but the WRC will only have the power (as in the case of flexible working) to compel an employer to respond to a remote working request.

The WRC will also have similar powers to intervene in cases where the employee maintains that their right to a postponement have been contravened, or where the employer terminates the arrangement and the employee believes this is unjustified.

The WRC will have the power to award compensation in certain circumstances – but this is capped at four weeks’ remuneration.

The WRC will not have the power to compel an employer to agree to a remote working proposal. P