Force Majeure

Under Section 13 of the Parental Leave Acts 1998 (amended by the Parental Leave Amendment Act 2006) employees are entitled, in certain circumstances, to take leave with pay from their employment which is known as “force majeure”. An employee’s entitlement to take “force majeure” arises where the employee is urgently needed to be present with an ill or injured person and the employee’s presence with the ill or injured person is absolutely necessary.

Under subsection 2(f) of the Act the person who is ill or injured and requires the employee to be present with them could be a person who resides with the employee in a relationship of domestic dependency. A relationship of domestic dependency will be deemed to arise if, in the event of illness or injury one person reasonably relies on the other person to make arrangements for the provision of care.

Individuals will be deemed to be in a relationship of domestic dependency if, when one person falls ill or is injured, that person relies on the other to make arrangements for their care. The most common examples are (a) where one spouse leaves employment to care for the other spouse who is ill and (b) where a parent leaves employment to look after an ill child.

As mentioned above, the employee’s entitlement to take “force majeure” arises where the employee is urgently needed to be present with the ill or injured person and the employee’s presence with the ill or injured person is indispensable. The requirement that the employee’s presence be “indispensable” means that the employees presence with the sick person must be absolutely necessary. The test applied in over-coming this hurdle and assessing whether the employee’s presence was absolutely necessary is a subjective test. This means that in testing whether the leave was absolutely necessary the test will be based on the facts of each individual case at the time the employee made the decision to take the leave.

The courts have previously held that the decision of the employee to take leave will be judged subjectively at the time the employee made the decision and not with hindsight. What is important therefore is the facts that existed at the time the employee made the decision to take leave owing to their presence with the sick or injured person being absolutely necessary.

Under subsection 3 of the Act, the employee is entitled to paid leave, provided that they comply with certain requirements. The employee is required, as soon as is reasonably practicable after the leave, to submit certain information to their employer. The employee is required to submit notice confirming that they have taken force majeure, the dates on which they took leave and a statement of the facts which entitled them to force majeure. Once the employee has submitted the required information, the employee should be entitled to force majeure pay. It is also a requirement that but for the leave the employee would have been working in the employment.

The employee is entitled to be paid for three days in a 12 month period or five days in a 36 month period.

If for example an employee took three days paid leave more than 12 months ago the employee could proceed to claim pay for a further two days leave this year. This would bring the employees total paid leave to five days leave within a 36 month period. The employee would not however be entitled to any more paid leave (force majeure) until this 36 month period had expired.

On the other hand, if for example an employee took three days paid leave less than 12 months ago the employee would not be entitled to claim pay for any more leave. This is because the employee is only entitled to three days pay in any 12 month period.

Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or info@cantillons.com if you would like more information.

* In contentious business, a solicitor may not calculate fees or other charges as a percentage of any award or settlement.

Jody Cantillon

Partner

Experience

Jody is a Partner in our Litigation Department.

Having graduated from University College Cork in 2009, Jody completed his apprenticeship with a top litigation defence firm in Cork City and qualified as a Solicitor in 2014.

Prior to joining Cantillons Solicitors in 2016, Jody worked for a leading Dublin firm, specialising in the area of commercial litigation and dispute resolution. There he gained valuable experience in defending and prosecuting high end, large scale commercial disputes before the Commercial Court.