Following the publication of the General Scheme of the Bill earlier this year, the Joint Committee on the Pre-Legislative Scrutiny of the General Scheme published its report which contained a number of substantive recommendations, including that consideration should be given to:

1. Introducing a statutory right of reasonable access to flexible working for all (not limited to parents or carers);
2. how personal/medical information concerning a third party is to be used in the application for leave relating to the care of that third party, what happens when the third party does not consent to the sharing of the information, and the obligations of the employer regarding the processing, storing and destruction of that information; and
3. aligning the eligibility criteria for remote working arrangements, provided for in the General Scheme of the Right to Request Remote Working Bill, with those contained in this Bill for flexible working arrangements.

However, despite the recommendations contained in the report, the Bill has not been substantially amended from the General Scheme published earlier this year.

Work Life Balance and Miscellaneous Provisions Bill 2022

The stated aim of the EU Directive on work-life balance for parents and carers is to increase the participation of women in the labour market and the take-up of family-related leave and flexible working arrangements. It is also aimed at encouraging a more equal sharing of family related leave between men and women. For that purpose, the Work Life Balance and Miscellaneous Provisions Bill 2022 will amend the Parental Leave Act 1998 to entitle certain employees to take leave for medical care purposes and to request flexible working arrangements for caring purposes. The Bill will also provide for an extended period of paid time off from work for breastfeeding and amend some anomalies contained in the Adoptive Leave Act 1995.

Scope

There is no substantive change to the definition of an “employee” contained in the Parental Leave Acts 1998 to 2019. As such, the rights contained in the Bill will apply to all persons who have entered into or work under a contract of employment and will include part-time and fixed-term employees and persons holding office under, or in the service of, the State.

Leave for medical care purposes

The Bill contains a new entitlement for employees to up to 5 days unpaid leave (in any 12 consecutive month period) for medical care purposes, for the purposes of providing personal care or support to a certain specified persons, including to a child, spouse/civil partner, cohabitant, parent or grandparent, brother or sister or a person who resides in the same household as the employee, where any of those persons is in need of significant care or support for a serious medical reason. For the purposes of the Bill, a person is considered to be “in need of significant care or support for a serious medical reason”, where, owing to a person’s disability, injury or illness, they require such care and support that includes the presence of the employee at the place where the person is. There is no service requirement needed to avail of this leave and the leave must be taken in periods of at least one day.

The employee must, as soon as reasonably practicable, confirm to their employer that they have taken or intend to take such leave. Such confirmation must specify the date of commencement of the leave and its duration, a statement of the facts entitling the employee to the leave and must be signed by the employee. If requested by the employer, the employee must also provide such information as the employer may reasonably require on the employee’s relationship with the person in respect of whom the leave is proposed to be taken or was taken, the nature of the personal care or support required and relevant evidence relating to the need of the person for significant care or support.

“Relevant evidence” is defined in the Bill as either a medical certificate signed by a doctor, stating that the person named in the certificate is in need of significant care or support for a serious medical condition, or such other evidence as the employer may reasonably require in order to show that the person concerned was or is in need of significant care or support for a serious medical condition. The employer must retain the confirmation and must provide the employee with a written acknowledgment of same, which the employee must in turn retain.

After taking leave for medical care purposes, the employee is entitled to return to work in the job they held immediately before the commencement of the leave. The Bill also provides that an employer must not penalise an employee for proposing to exercise or having exercised his/her right to leave for medical care purposes or his/her entitlement to make a request for such leave.

Leave for medical care purposes will be in addition to existing entitlements under the Carer’s Leave Act 2001 and force majeure leave, where employees must respond to an emergency of a family member.

Right to request flexible working arrangement for caring purposes

An employee who is the parent of a child up to age 12 (or up to age 16 if the child has a disability or illness) and who is or will be providing care to that child or an employee who is or will be providing personal care or support to certain specified persons (as detailed above in the context of leave for medical care purposes) may apply for a flexible working arrangement for the purpose of providing care or support to such persons.

A “flexible working arrangement” is defined in the Bill as a working arrangement where an employee’s working hours or patterns are adjusted, including through the use of remote working arrangement, flexible working schedules or reduced working hours. To apply for this leave, an employee must have 6 months continuous employment.

A request for a flexible working arrangement must be in writing and signed by the employee. It must specify the form of the flexible working arrangement requested, the date of commencement and duration of the arrangement and be submitted at least 8 weeks before its proposed commencement. If the employer so requests, the employee must provide such information as the employer may reasonably require in relation to the person in respect of whom the request is made, including, in the case of a child, the child’s birth certificate, and in the case of all other persons, the employee’s relationship with the person concerned, the nature of the significant care or support required and relevant evidence relating to the need of the person concerned for significant care or support.

Time limit to make a decision and respond to request

An employer must consider the request, having regard to his/her needs and the employee’s needs and, as soon as reasonably practicable and within 4 weeks of receipt of the request:

1. approve the request, including an agreement prepared and signed by both parties setting out the details of the flexible working arrangement along with the date of commencement;
2. provide a notice in writing informing the employee that the request has been refused and the reasons for the refusal; or
3. provide a notice that the employer has extended the 4 week response period by a further period of up to 8 weeks (where the employer is having difficulty assessing the viability of the request).

Grounds for postponement

An employer may, by notice in writing, postpone the commencement of a flexible working arrangement by up to 6 months where satisfied that its commencement would have a substantial adverse effect on the operation of its business, profession or occupation, by reason of seasonal variations in the volume of work concerned, the unavailability of a person to carry out the duties of the employee, the nature of those duties, the number of employees in the employment or the number of other approved flexible working arrangements which fall within that same period, or other relevant matters. Interestingly, there is no indicative list of reasons that might justify refusal of a request contained in the Bill.

The notice must contain a summary of the grounds for the postponement. Before informing the employee of a postponement, the employee must consult with the employee on this. The flexible working arrangement may not be postponed more than once, unless the ground for postponement is the seasonal variation in the volume of work concerned. In which case, the commencement of the leave can be postponed twice.

Changes to flexible working arrangements

The Bill provides that an employer and employee may agree in writing to changes to the flexible working arrangement, even after the agreement has been signed, including to a postponement of the commencement date, that the duration of the arrangement be curtailed or that the form of flexible working be varied.

Where the agreement has been signed but the arrangement has not commenced and the employee becomes ill or incapacitated such that they are unable to care for the person who is the subject of the flexible working arrangement, the employee may, by notice in writing as soon as is reasonably practicable after becoming ill or incapacitated, and accompanied by relevant evidence as to the illness or incapacity, postpone the commencement of the arrangement to such time as they are no longer ill or incapacitated.

An employee may request, by notice in writing, an early return to the original working arrangements they held immediately before the commencement of the flexible working arrangement. The notice must set out the reasons for the early return and the proposed date for the early return. The employer must consider the request, having regard to its needs and the employee’s needs, and as soon as reasonably practicable and within 4 weeks of receipt of the request, must respond to the employee in writing. If the employer refuses to agree to an early return, it must provide reasons for the refusal.

Right to return

On the expiry of the flexible working arrangement, the employee will be entitled to return to the original working arrangement they had immediately before its commencement.

Anti-abuse provision

The Bill provides that where an employer has reasonable grounds for believing 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, by written notice, terminate the arrangement. The notice must contain a summary of the grounds for terminating the arrangement. Where the arrangement has been terminated, the employee must return to their original working arrangement on the day specified in the notice.

Before giving notice to terminate a flexible working arrangement, the employer must give written notice of the proposal to the employee containing a summary of the grounds for terminating the arrangement and a statement that the employee may within 7 days of the receipt of the notice make representation to the employer in relation to the proposal and any such representation must be considered by the employer before it decides to terminate the arrangement.

Complaints to Workplace Relations Commission

If an employer receives a request for flexible working but fails to consider that request and respond to the employee within 4 weeks of receiving the request, the employee may bring a complaint to the Workplace Relations Commission. The WRC can direct that the employer considers and responds to the request within a specific period or award compensation of up to 20 weeks’ remuneration or both.

Record keeping

The employer is required to retain records of leave for medical care purposes and approved flexible working arrangements taken by employees for a period of 3 years.

Right to extended period of leave for breastfeeding

The Bill amends the Maternity Protection Act 1994 to increase the number of weeks from 26 to 104 weeks during which mothers are entitled to take paid time off work and have reduced working hours for breastfeeding purposes.

Domestic Violence Leave

Minister for Children, Equality, Disability, Integration and Youth, Roderic O’Gorman TD has stated that he intends to introduce legislative provisions providing for a form of domestic violence leave as Committee Stage amendments to this Bill. It is expected that these provisions will entitle employees affected by domestic violence to avail of a statutory entitlement to 5 days’ paid leave in any period of 12 consecutive months to attend to ongoing matters arising due to domestic violence. We await publication of these proposed amendments.