The Government has been trumpeting plans for a right to request remote working for some years. Those plans have now finally been implemented in the form of the new Work Life Balance and Miscellaneous Provisions Act 2023. Remote working, however, is not the only issue addressed in the Act, with the new legislation also introducing a right to request flexible working arrangements, leave for medical care, domestic violence leave and further rights in relation to breastfeeding. Our Adrian Twomey discusses the key points to note in the new Act.
Section 20 of the new legislation is the headline provision in that it provides that employees who have completed six months of continuous employment may request remote working arrangements from their employers. In reality, there has never been any legal obstacle to employees making such requests. What changes under the new Act, however, is that employers are now obliged, under section 21, to “consider” such requests, whilst having regard to their “needs”, the employee’s “needs” and the requirements of a Code of Practice to be prepared by the Workplace Relations Commission. The statutory provision will inevitably lead to arguments at hearings as to the difference between the “needs” and “wants” of employers and employees. It also opens up space for potential legal challenges to the legitimacy of the expected Code of Practice.
Section 21 requires employers to approve requests for remote working (in which case appropriate agreements need to be set out in writing) or refuse requests and detail the reasons for such refusals. Employers are obliged to do so “as soon as reasonably practicable” but within four weeks after receiving requests, although that period may be extended by a further eight weeks where they are having “difficulty assessing the viability” of requests. One can imagine that such extensions will become a regular feature of dealing with requests for remote working.
The Act does allow, in section 22, for the termination of remote working arrangements where the employer is satisfied that the arrangement would have, or is having, a “substantial adverse effect on the operation of his or her business, profession or occupation” in particular circumstances.
Termination of the arrangement is also permitted in circumstances where there is abuse of it by employees. In particular, termination is possible where the employer has “reasonable grounds” for believing that an employee is not discharging all of their duties.
It is hard to imagine that this new employment “right” will not give rise to a significant number of claims over the coming years.
Section 8 of the 2023 Act introduces a “right” to request flexible working arrangements for caring purposes and partially implements EU Directive 2019/1158 on work-life balance for parents and carers. The scope of this new “right” is limited, in that:
It is only available to employees who are or will be providing care or support to their child, parent, grandparent, spouse, civil partner, cohabitant, sibling or to a person residing in the same household.
Flexible working arrangements can only commence once the employee has completed six months of continuous service.
Where flexible working arrangements relate to the provision of care for a child, they end when the child reaches twelve years of age (with certain exceptions for children who are adopted or who have disabilities or long-term illnesses).
As with requests for remote working, requests for flexible working must be made in writing and must be considered by employers within four weeks, although that period may be extended by a further eight weeks.
Medical Care Leave
Section 6 of the 2023 Act introduces a new right to “leave for medical care purposes”. This new form of leave, introduced by means of amendments to the Parental Leave Act 1998, permits employees to avail of a maximum of five days of unpaid leave in any twelve-month period for the purposes of providing personal care or support to their child, spouse or civil partner, cohabitant, parent, grandparent, sibling or a person who resides in the same household and is in need of significant care or support for a serious medical reason.
The Act specifically requires the keeping of certain records in relation to medical care leave. It will undoubtedly add to the administrative burden on Human Resources Departments and raises some interesting questions as to how employers can safely comply both with their record-keeping obligations and the General Data Protection Regulation and Data Protection Acts. How, for example, is an employer to deal with a medical certificate detailing sensitive medical data relating to an employee’s spouse or grandparent when that is submitted by the employee as evidence of their need to avail of medical care leave?
Domestic Violence Leave
Section 7 of the 2023 Act entitles employees to take up to a maximum of five days of leave in any twelve-month period where they (or their spouse, civil partner, cohabitant, child or dependant or a person with whom they are in an intimate relationship) has experienced or is experiencing domestic violence. The purpose of the leave must be to:
· seek medical attention;
· obtain services from a victim services organisation;
· obtain psychological or other professional counselling;
· obtain an order under the Domestic Violence Act 2018;
· seek legal advice or assistance;
· seek assistance from the Gardaí; or
Domestic violence leave is to be paid at a rate to be specified in regulations.
Whilst the idea of domestic violence leave is attractive on a number of levels, it is not hard to imagine the taking of such leave by employees prompting data privacy issues and even defamation cases. This is, once again, territory that will require employers to be incredibly sensitive and sure-footed.
The 2023 Act also extends the period during which breastfeeding must be facilitated from 26 weeks to 104 weeks following the birth of a child.
Entry into Force
The Act has been passed by both houses of the Oireachtas and has been signed by the President. However, it will not take effect until commencement orders are made by the Minister for Enterprise, Trade and Employment. It is expected that the various provisions of the Act will be phased in over the course of 2023 with some to brought into effect almost immediately. The anticipated Code of Practice on remote working will clearly be of considerable importance and will need to be published before the “right” to request remote working can be brought into effect.
The new legislation will require more detailed scrutiny over time before the full effects of its introduction become clear. However, employers now need to review their policies and contractual provisions in relation to such issues as remote working, breastfeeding/maternity and various forms of leave if they are to be ready to comply with the Act when it is brought into effect. Employers who require advice and assistance in relation to such matters may contact our Adrian Twomey.