07 05 2019 Insights Employment Law

The Juggling Act


By Ciara Ní Longaigh
7 May 2019

The proposal for an EU Directive on Work-Life Balance (“the Directive”) for parents and family carers aims to provide greater flexibility to people in terms of leave and better balance between work and life. This Directive will overhaul (and ultimately repeal) the existing framework around paternity, parental and carers’ leave from the EU. The Directive is part of an overall initiative of the EU to support parents and carers in the labour market and to better share such leave between men and women equally. From an Irish perspective, we are ahead of the curve, with many of the proposed changes already in place, or on the way in the coming months.

Paternity Leave
Irish parents (other than the mother of the child) are entitled to two weeks’ leave from work following the birth or adoption of their child. This leave can start at any time within the first six months of the birth or adoption of the child. Payment from an employer for this leave depends on the employee’s contract of employment. Statutory paternity benefit is available to parents (currently €245 per week, where eligible).

In the EU, there is no minimum standard for paternity leave and it is applied differently across each Member State. The new Directive will introduce paternity leave as an individual and non-transferable right. Parents (other than the mother) will be able to take at least 10 working days of paternity leave around the time of the birth of the child. The leave must be paid at least to the level of sick pay. The current Irish legislation will comply with the proposed Directive. Paternity benefit currently exceeds the level of illness benefit paid by the state to eligible employees on a weekly basis.

Parental Leave
Parents are permitted to take 18 weeks’ unpaid leave per child (once certain additional conditions are met). If both parents work for the same employer, then it is possible to transfer up to 14 of the 18 weeks’ leave from one parent to the other parent. From November 2019, the Parental Leave and Benefit Bill 2019 is expected to introduce two weeks paid parental benefit for the first time in Ireland. The paid element is intended to increase incrementally from two to seven weeks paid leave by 2021. The Government has focussed on the development bond between a male parent particularly, and a new child – with the proviso that the parent will only qualify for paid parental benefit taken during the first year of the child’s life.

Under the Directive, each parent will be entitled to the same four months’ leave, however, in an effort to encourage a more balanced take up of the leave, particularly from male parents, there will be a restriction from transferring two months’ leave to the other parent. Parents will also be able to request to take the leave in a more flexible form than the existing requirement to take blocks of 6 weeks. Requests for remote working, part-time work and other flexible arrangements must be considered. It will be the Irish Government’s responsibility to put some structure around how this will work.

Separately, the Directive speaks of incentivising, men in particular, to take this leave, and to ensure they do so, require Member States to pay an allowance (to the equivalent of illness benefit), and in alignment with maternity and paternity pay. Ireland is again ahead of the curve on this, as mentioned above.

Carers’ Leave
In Ireland, the broad concept of carers’ leave involves a temporary unpaid absence from work for at least 13 weeks (and not more than 104 weeks) to provide full-time care to someone. Eligible employees will receive carer’s benefit, which currently amounts to €220 per week.

An individual right to carers’ leave is currently not recognised at an EU level. Under the proposed Directive, all employees will have the right to five working days of carers’ leave per year. Interestingly, the proposed Directive does not require payment of any state allowance to employees who take carers’ leave.

Flexible Working Arrangements
The emphasis of the proposed Directive is to ensure that female employees continue to contribute to the workforce. It is recognised that there is a significant underrepresentation of women in the workplace, primarily because of the difficulty in balancing work and family obligations. The European Parliament specifically calls out that females who have sick or dependant relatives can end up dropping out of the labour market entirely.

The proposed Directive will facilitate every employee with children up to eight years of age, and carers, and will ensure that such individuals have a right to request flexible working arrangements. This includes:

  1. Reduced working hours
  2. Flexible working hours
  3. Remote working options

Unlike other Member States, there is currently no legislative provision in Ireland governing the right to request flexible working. It is likely that the publication of the Directive will require legislative changes in Ireland to put structure around the application process, and the extent to which an employee may have the right to enforce a reasonable request for flexible working arrangements.

Ultimately, the most significant impact of the proposed Directive from an Irish perspective, will be the introduction of the right of parents and carers to request flexible working arrangements. Once the proposed Directive becomes effective, Ireland will have three years in which to comply with the new requirements. As the proposed Directive is now at the final stage and awaiting Council approval, the clock will start ticking in the coming months. Many Irish employers have already started to introduce a flexible working policy, following the increased global movement towards more versatile working arrangements. Flexible working policies are extremely useful to set out how requests for flexible working arrangements will operate. It is important to note that the right to request flexibility is not a right to be granted flexibility, and employers will have the discretion to consider, but postpone and refuse requests in certain circumstances.

This document is for general information purposes only and does not constitute legal or other professional advice. Specific legal advice should be sought on any particular matter.

For more information on the content of this insight please contact:
Ciara Ní Longaigh, Solicitor, ciara.nilongaigh@rdj.ie, +353 21 4802727

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