Ireland: A Balancing Act – Managing Rights Under The Work Life Balance And Miscellaneous Provisions Act 2023

Significant new employment rights and obligations have been introduced by the Work Life Balance and Miscellaneous Provisions Act 2023 ("Work Life Balance Act"). A key aim of the Work Life Balance Act is to contribute to the achievement of gender equality by promoting the participation of women in work and the equal sharing of caring responsibilities between genders.

Although some of the Work Life Balance Act's provisions commenced on 3 July 2023, key provisions, such as a right to take domestic violence leave and the right to request remote and flexible working, are expected to commence this autumn when specific guidance for employers and employees along with a Workplace Relations Commission ("WRC") Code of Practice ("COP") will also be published.

Since the pandemic, many employers' remote and flexible working arrangements have evolved and matured. The Work Life Balance Act provides greater clarity and structure on agile working practices.

New rights for employees

The core elements of the Work Life Balance Act are:

• a right for all employees to request remote working arrangements;
• a right for parents and those with caring responsibilities to request flexible working arrangements;
• a right to take up to five days unpaid leave per year for medical care purposes;
• a right to take up to five days paid leave per year for victims of domestic violence;
• a significant extension to the period in which new mothers are entitled to paid time off work to breastfeed (from six months to two years); and
• an amendment to existing maternity protection legislation to ensure transgender males who have obtained a gender recognition certificate and subsequently become pregnant fall within its scope.

Right to request a remote working arrangement

Employees may make a remote working request from commencement of employment, however the Work Life Balance Act provides that an approved request shall not commence prior to the employee completing six months' continuous service with the employer.

Making a request

The request for a remote working arrangement must be in writing and signed by the employee. It must include the proposed dates of commencement and expiration (if applicable) of the remote working arrangement. The request must also specify the reasons for the request, the proposed location and the suitability of the proposed location, having regard to the provisions of the COP. This indicates that the COP will include guidance on employee needs for remote working and the requirements of a proposed remote working location.

The request must also be submitted to the employer no later than eight weeks before the proposed commencement of the remote working arrangement.

Responding to an employee's request

The employer must consider the needs of both parties, and the provisions of the COP when responding to a request.

Employers must, as soon as reasonably practicable, and within four weeks, make a decision to either approve or refuse the request. This may be extended by a further eight weeks, if the employer is having difficulty in assessing the viability of the request.

If a request is approved, the employer and the employee must enter into an agreement setting out the details of the arrangement and the dates of commencement and expiration (if applicable) of the arrangement. If the employer refuses the request, the reasons for the refusal must be clearly communicated in writing to the employee.

Terminating an approved remote working arrangement request

Employers may terminate the remote working arrangement by written notice if they are satisfied that the remote working arrangement would have, or is having, 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 in the employer's place of business;
• the nature of the duties of the employee in the employment; or
• any other relevant matters.

The employer must first notify the employee that it is proposed that the arrangement will be terminated and provide a statement outlining the grounds for terminating the arrangement. The employee may make representations regarding the proposal to terminate the arrangement within seven days of this statement. Before making a decision to terminate the remote working arrangement, the employer must consider the employee's representations, the needs of the business, the employee's needs and the requirements of the COP. If the employer decides to proceed with termination, the employer must provide at least four weeks' notice of termination.

An expedited termination process may be used if the employer has reasonable grounds for believing that the employee is not discharging all of their duties of employment. In such circumstances, the employer may provide seven days' notice of termination.

Right to request a flexible working arrangement for caring purposes

A 'flexible working arrangement' is 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. Where a remote working arrangement is requested for caring purposes, any caring responsibilities must take place outside of working hours. Employees who have a child up to the age of 12 (or 16 if the child has a disability or long-term illness) and employees who are caring for a relative or someone they live with and who is in need of significant care or support for a serious medical reason will have the right to request flexible working arrangements for a particular period.

There will be a qualification period of six months' continuous employment before an employee will be entitled to commence the requested arrangement.

Making a request

The 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. It must be submitted to the employer no later than eight weeks before the proposed commencement of the flexible working arrangement

Responding to a request and terminating an approved arrangement

The procedure for responding to a request for a flexible working arrangement and the procedure for terminating a flexible working arrangement mirror the procedures for a remote working arrangement. Before making a decision to terminate the flexible working arrangement, the employer must consider the employee's representations, the needs of the business, the employee's needs and the requirements of the COP.

WRC COP

The Work Life Balance Act expressly requires consideration of the WRC's COP in relation to the making, consideration and management of remote working requests. The COP is expected to be published later this year. The WRC is currently considering submissions received during a public consultation. Once the submissions have been considered, the WRC will commence drafting the COP. It is expected that the COP will be published later this year.

Potential claims

The Work Life Balance Act introduces rights to request remote and flexible working arrangements. It does not introduce a right for employees to work remotely or flexibly.

The WRC may award up to four weeks' remuneration for a breach of an employer's requirements in respect of managing an employee's request for a remote working arrangement and/or direct the employer to comply with their requirements. The WRC may award up to 20 weeks' remuneration for a breach of an employer's requirements in respect of managing an employee's request for a flexible working arrangement and/or direct the employer to comply with their requirements. However, the WRC will not be entitled to consider the "merits" of any decision made by the employer to refuse a request, including the reasons for reaching their decision.

Even so, a refusal to grant such an arrangement is not entirely risk free. There is a clear link between parents and carers and the family status and other protected grounds in the Employment Equality Acts 1998 to 2021. In addition, a flexible or remote working arrangement may be requested as a 'reasonable adjustment' for an employee with a disability. Depending on the circumstances, a refusal to grant an employee's request for a flexible working arrangement may be indirectly discriminatory. This does not mean that all such requests should be granted. It is possible that an indirectly discriminatory policy may be objectively justified where it is a necessary and proportionate means of achieving a legitimate aim and having regard to all the circumstances. Employers should carefully consider all requests on their own facts, particularly if the employer is on notice of an employee's relevant protected characteristic.

Leave for medical care purposes

All employees will have an entitlement to five days unpaid leave per year where, for serious medical reasons, they need to provide personal care or support to a family member, or person they live with, and who is in need of significant care or support for a serious medical reason.

Employees intending to take leave for medical care purposes must, as soon as practicable, confirm to their employer the commencement date of the leave, its duration and a statement of facts entitling them to the leave.

Absence from employment while on leave for medical care purposes must not be treated as any other leave from employment, such as sick leave, parental leave or maternity leave.

Domestic violence leave

All employees will have a right to take up to five days paid domestic violence leave per year for the purposes of seeking certain medical, psychological, legal, and other relevant support services where they are experiencing or have experienced domestic violence. 'Domestic violence' means violence, or threat of violence, including sexual violence and acts of coercive control'. This leave can also be availed of by an employee to assist a family member who is experiencing or has experienced domestic violence.

Employees who take domestic violence leave must, as soon as reasonably practicable thereafter, give notice to their employer that they have taken such leave and the dates on which it was taken. The Work Life Balance Act does not require an employee to provide any evidence of their need to take domestic violence leave. The Minister for Children, Equality, Disability, Integration and Youth has recently confirmed that a policy decision was taken not to require employees to provide any evidence of their need to take domestic violence leave and that domestic violence leave will be fully paid.

This right is expected to commence this autumn and guidance is being developed with Women's Aid to support employers and employees in implementing this right.

Key Takeaways for Employers

• Employee handbooks should be reviewed to reflect the new rights contained in the Work Life Balance Act and those due to be commenced.
• A COP is awaited which will provide additional guidance for employers on managing requests for remote and flexible working arrangements and the factors employers should consider before deciding whether to grant or refuse such a request.
• If the employer already has agile working policies in place, these should be reviewed in anticipation of the new rights under the Work Life Balance Act. If the employer has not yet provided such policies to their employees, it may be advisable to wait until the COP is published.
• Employers should be mindful of their obligations under the Organisation of Working Time Act 1997, the WRC's Code of Practice on the Right to Disconnect, the Safety, Health and Welfare at Work Acts 2005 to 2014, under the GDPR, and the Data Protection Acts 1988 to 2018 when considering or implementing a flexible or remote working arrangement.
• Although the "right to request" remote and flexible working may seem relatively toothless, employers should carefully consider all requests made by employees. A refusal to grant an employee's request may be indirectly discriminatory on the family status or disability ground. A practice to refuse such requests may also have a detrimental effect on retention and recruitment.
• Facilitating employee requests for remote and flexible working has been shown to encourage greater female participation in the workplace and reduce an organisation's gender pay gap. Employers looking to introduce initiatives to reduce their gender pay gap could seize the opportunity and introduce or enhance existing agile working policies as part of a wider plan to promote gender equality in their workplace.
• Breastfeeding break entitlements have increased from six months to two years. As a DE&I initiative, employers should consider how their workplace could adapt to support breastfeeding mothers returning to work.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.