The EU Work-Life Balance Directive in Ireland

by Tríona Sugrue, Knowledge Lawyer in the Employment Law Practice Group at A&L Goodbody.

Hot on the tails of the recent general scheme of the Right to Request Remote Working Bill and against the backdrop of many workplaces implementing new hybrid working models, the Irish government has published details of the Work Life Balance and Miscellaneous Provisions Bill 2022. It will introduce a right to request flexible working for employees with children up to the age of 12 and those with caring responsibilities. It will also introduce a right for employees to take up to five days’ unpaid leave per year to provide medical care for family members or those in their household and a significant increase to the period in which new mothers are entitled to take paid time off work each day to breastfeed. It does not go so far however, as to introduce a right to request flexible working for all employees.

The Minister for Children, Equality, Disability, Integration & Youth, Roderic O’Gorman, stated the aim is “to ensure that parents and carers can be supported to balance their working and family lives. Through the Work Life Balance Bill, they can have peace of mind that work will allow time for the responsibilities that caring brings. The proposals…will complement family leave and other entitlements already in place and will provide additional flexibility.”

Background

The proposed bill is necessary to implement the EU Work-life Balance Directive, which is due to be transposed by August 2022. Some aspects of the Directive, such as in respect of paternity leave, are already in place in Ireland and the general scheme is in fact more expansive than the Directive in some areas. It is noteworthy that the proposed legislation goes further than the Directive in that flexible working requests may be made in respect of children up to the age of 12, whereas the Directive provides for the right up to the age of 8.

In this update, we look at what key changes the proposed legislation will mean for businesses and next steps.

Key changes

The right to request flexible working

• 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 will have the right to request flexible working arrangements for caring purposes for a particular period. The right will be subject to a six months’ continuous service requirement. What constitutes “flexible working arrangements” is somewhat open to interpretation, as the scheme merely refers to changing work arrangements, work patterns or hours of work.
• Employees will be required to make such requests in writing no later than six weeks before they intend to commence the period of flexible working. This request must specify the nature of the changes requested, the date of commencement and the duration of the set period. Employers must consider these requests having regard to business needs and the needs of the employee, and must, within four weeks (which may be extended by a further eight weeks with the employee’s agreement), either grant the request, postpone the request, or refuse the request and inform the employee of the reasons. Before any postponement, the employer must consult with the employee.
• If an employer is satisfied the granting of the request would have a substantial adverse effect on the operation of its business, it may postpone the commencement of the arrangements for up to six months. The scheme lists a number of reasons why postponement may be necessary, for example, due to the unavailability of a person to carry out the duties of the employee or the nature of the particular duties, but interestingly, does not include a similar provision in respect of the reasons for refusing a request.
• Where the request is granted, the employer and employee must sign an agreement outlining the changes to working arrangements, patterns or hours and stating the date of commencement and duration of the set period.
• At the end of the flexible working arrangement, the employee is entitled to return to the original working arrangements, hours or patterns.

Leave for medical care purposes

• Any employee will be allowed to take up to five days’ unpaid leave per year, where for “serious medical reasons“, the employee needs to provide personal care or support to a family member or person who lives in the same household as the employee. The leave may not be taken in periods of less than one day.
• Employees must, as soon as is reasonably practicable, confirm to their employer in writing that they have taken or intend to take this leave, the date of commencement, duration and a statement of the facts entitling the employee to the leave.
• Employers will be able to request evidence from the employee of their relationship with the person being cared for, the nature of that care and medical certification of the serious medical issue in respect of the person requiring the care.

Breastfeeding

• The general scheme proposes to amend maternity protection legislation by significantly increasing the period in which mothers are entitled to take paid time off work each day to breastfeed from a period of six months to a period of two years from the date of birth.

Extension of right to maternity leave

• The general scheme also proposes to amend maternity protection legislation to ensure that transgender males who have obtained a gender recognition certificate and subsequently become pregnant will fall within the scope of the legislation.

Next steps

• The general scheme is now with the Office of the Attorney General for drafting of the Bill. It is intended that the legislation will be passed and enacted by the August 2022 deadline.
• Employers will need to review and update their family leave and flexible working policies in light of the new legislation and in time for its enactment. While the draft Bill itself has not yet been published and will be subject to debate before enactment, employers should be fully informed of this development and begin to review workplace policies to cover the new employee entitlements.

About the author
Tríona has many years’ experience in advising on all aspects of contentious and non-contentious employment arrangements. Her expertise includes the provision of ongoing support to HR managers in relation to internal reorganisations and rationalisations, terminations, audits of employment-related documentation and transfer of undertakings. She has vast experience representing employers and employees in employment disputes including applications for injunctions, actions for breach of contract and personal injury for stress and bullying; and all claims under employment legislation before the Workplace Relations Commission, the Labour Court and the civil courts.
Having completed a Degree in Law and German at UCC and a Masters Degree in European Law at UCD, Tríona qualified as a solicitor in 2006. She subsequently completed the Diploma in Employment Law at UCD in 2007.
Tríona is a Lecturer and Tutor in Employment Law to students at the Law Society of Ireland.