STRIKING THE BALANCE; The Work Life Balance and Miscellaneous Provisions Act 2023
Posted in [Blog] on Thursday, May 4th, 2023
The Work Life Balance and Miscellaneous Provisions Act 2023 was signed into law by the President on the 4th April 2023. The legislation is widely welcomed, with the Minister stating that it represents “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”. Commencement Orders are awaited but are expected to issue shortly.
The legislation will introduce a number of key changes to include;
- The right to request flexible working arrangements for parents and carers.
- The right to request remote working for all employees.
- 5 days paid leave for victims of domestic violence.
- 5 days unpaid leave for medical care purposes.
- 2 years of breastfeeding breaks.
1. The right to request flexible working for parents and carers.
The right to request flexible working arrangements for caring purposes applies to employees who are the parent of a child or an employee who will be providing personal care or support to another person such as spouse/civil partner, co-habitant, parent or grandparent, brother or sister of the employee or a person who resides in the same household as the employee. That person must be in need of significant care or support for a serious medical reason.
A request for a flexible working arrangement must be in writing and signed by the employee, specifying the type and form of flexible working arrangement requested and the date of its proposed commencement. It must be submitted to the employer as soon as reasonably practicable but not later than eight weeks before the proposed commencement of the proposed flexible working arrangement.
An employer has a right to request such information as may be reasonably required, including, in the case of a flexible working arrangement to care for a child, a copy of the child’s birth certificate. In the case of any other person, an employer can request information on the employee’s relationship with the person, the nature of the significant care or support that the person is in need of and evidence relating to the need of the person. Relevant evidence can include requesting a medical certificate from a registered medical practitioner.
Where an employer receives a request for a flexible working arrangement, the employer must consider the request in no later than four weeks from receipt of the request. Where the request is approved, the approval shall be set out in writing and signed by the employer/employee setting out the details of the flexible working arrangement, the date of commencement and the duration.
Where the request is refused, an employer must provide a notice in writing informing the employee that the request is being refused and the reason for the refusal.
The four-week period referred to above may be extended by the employer by a further period not exceeding eight weeks where the employer is having difficulty assessing the viability of the request for a flexible working arrangement.
Whilst an employer must consider the request, is not bound to agree to it.
Six months continuous employment with the employer must have been completed before a flexible working arrangement is approved for such an employee.
The flexible working arrangement for the care of a child shall end when the child concerned reaches 12 years or, if the child concerned has a disability or long-term illness, no later than the date that the child reaches the age of 16 years, or ceases to have the disability or long-term illness, whichever first occurs.
Where an employer has reasonable grounds to believe that an employee, who is on an approved flexible working arrangement, is not using the arrangement for the purpose for which it was approved, the employer may give notice in writing to terminate the flexible working arrangement and the notice shall contain a statement in summary form of the grounds for terminating the arrangement and shall specify the day on which the employee must return to work.
The legislation also provides guidance for situations which may arise whereby there may be changes made to the flexible working arrangements, termination in certain circumstances of the flexible working arrangement and an earlier return to the previous working arrangement.
The Minister, no later than two years after the commencement of this part of the legislation, will conduct a review of the operation of this part of the legislation and may, as part of the review, consider whether the right to request a flexible working arrangement should be extended to all employees.
2. The right to request remote working for all employees.
An employee may request approval from his/her employer for a remote working arrangement.
A request for a remote working arrangement must be in writing and signed by the employee, specifying the details of the remote working arrangement requested, the proposed date of commencement and must specify, having regard to the Code of Practice, the reason for such a request, details of the proposed remote working location and information as may be specified in the Code of Practice on the suitability of the proposed remote working location.
Such a request must be submitted to the employer no later than eight weeks before the proposed commencement of the proposed working arrangement. The employer has a right to request further information as may be reasonably required to consider the request.
An employer who receives such a request for a remote working arrangement must consider the request having regard to the employer’s need, the employee’s need and the requirements under the Code of Practice.
Four weeks after receipt of the request, the employer must either;
- Approve the request which shall be set out in a written agreement and signed by the employer/employee setting out the details of the remote working arrangement, the date of commencement and date of expiration.
- Provide a notice in writing informing the employee that the request has been refused and the reason for the refusal.
An employer can extend the four-week period for a further period, not exceeding eight weeks, where the employer is having difficulty assessing the viability of the request for a remote working arrangement.
If same is approved, the employee must have completed six months of continuous employment with the employer concerned before the arrangement will commence.
Whilst an employer must consider the request, is not bound to grant it.
The legislation also provides guidance for situations which may arise whereby the remote working arrangement can be terminated, changes made to remote working arrangements and the return to the previous working arrangement, similar to the criteria set out in respect of a flexible working arrangement for caring purposes.
Where an employer has reasonable grounds to believe that an employee who was on an approved remote working arrangement is not discharging all of their duties of employment in accordance with the agreement, the employer may give notice in writing to the employee terminating the remote working arrangement and setting out a summary of the grounds for terminating the arrangement, together with the date on which the employee must return to work.
The employer also has the power to terminate the remote working arrangement if it is having a substantial adverse effect on the operation of the employer’s business.
3. Five days paid leave for victims of domestic violence
Employees shall be entitled to leave with pay from employment, known as domestic violence leave, where the employee has experienced in the past or is currently experiencing domestic violence and the purpose of the leave is to enable the employee to do, (or to assist a relevant person who has/is experiencing domestic violence), in seeking assistance which may be in the form of seeking medical attention, obtaining services from a victim services organisation, psychological or other counselling support, relocating, seeking advice from the Gardai, legal practitioner or an Order under the Domestic Violence legislation, or any other relevant services.
The entitlement is to five days paid leave per consecutive twelve-month period.
An employee must notify their employer as soon as is reasonably practicable when an employee takes domestic violence leave. The notice shall specify the dates on which it was taken.
Unlike medical care leave, there is no requirement for an employee to furnish an employer with a statement of facts, nor can employers request documentary evidence of domestic violence. This is due to the sensitive nature of this particular leave.
4. Five days unpaid leave for medical care purposes
The legislation provides a statutory right to medical care leave for the purposes of providing personal care or support to a person such as child, spouse or civil partner of the employee, a co-habitant of the employee, a parent or grandparent, a brother or sister of the employee or a person who resides in the same household as the employee.
The person concerned must be in need of significant care or support for a serious medical reason. The medical care leave shall not exceed five days in any one period of twelve consecutive months.
The employee must provide a signed written confirmation of their intention to take medical care leave which shall include the date of commencement of the leave and its duration, a statement of the facts entitling the employee to the leave, and be signed by the employee concerned. Upon receipt, the employer shall provide written acknowledgement of receipt of the confirmation.
Further information, as the employer may reasonably require, may also be requested, such as a medical certificate confirming that the person is in need of significant care or support for a serious medical reason.
5. Two years of breast-feeding breaks.
The legislation amends the Maternity Protection Act 1994 which gives an extension to the period during which an employee must be facilitated in breast feeding. The previous period was 26 weeks, which is now increased to 104 weeks, following the birth of a child. An employee may have working hours reduced, without loss of pay, or take paid time off work each day to breast feed.
What now for Employers?
Commencement orders are awaited. They are expected to be issued shortly. In the interim, employers should review their policies and procedures in respect of remote working and flexible working policies to ensure there is compliance with the legislation once it becomes operational.
The Workplace Relations Commission remains the appropriate forum for an employee to bring a complaint if there is a breach of this new legislation. If successful, the WRC has the power to order an employer to comply with their obligations and/or award compensation up to twenty weeks pay (or four weeks’ pay in the case of remote working).
Importantly, the WRC is not entitled to consider the merits of the decision made by an employer to refuse a request, including the reasons for reaching their decision, when deciding upon the level of compensation to award.
* In contentious business, a Solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement. Many Personal Injury Solicitors portray themselves as “no win no fee Solicitors Cork” or “no win no fee Solicitors Dublin”. This term can be misleading and it is essential that you discuss fees with the Medical Negligence Solicitor you ultimately choose. At Cantillons Solicitors, we are entirely transparent
Amy joined Cantillons in 2013 having graduated with an Honours Bachelor of Civil Law Degree from University College Cork. She successfully completed her Law Society FE-1 Examinations and received an award for achieving the highest mark in the Law of Tort exam in the 2015 sittings. Thereafter she completed the Law Society Professional Practice Courses at Blackhall Place, Dublin.
Amy spent two years in the Medical Negligence Department working on various cases involving birth injuries, cancer misdiagnosis, surgical errors and fatal claims.
Amy is currently working in the General Litigation Department and advises clients in relation to all aspects of civil litigation; to include personal injury claims, accidents at work, road traffic accidents, public liability claims, farming accidents, claims against local authorities and claims against the HSE. She has successfully represented clients before the District Court, Circuit Court, High Court, and Court of Appeal and has been involved in a number of high profile cases.
Amy is also a member of the Residential Tenancies Board Panel of Solicitors, enforcing RTB Determination Orders in the District Court.
Honours Bachelor’s Degree in Civil Law
Completed Law Society Professional Practice Courses at Blackhall Place, Dublin