knowledge 21 November 2023 |

Update on the Work-Life Balance & Miscellaneous Provisions Act 2023

Domestic Violence Leave

The Act’s provisions on Domestic Violence Leave will, it has been confirmed, be commenced with effect from 27 November 2023. This will provide employees, where they or another relevant person experience or have experienced domestic violence, with an entitlement to a maximum of 5 days leave in a 12-month period, where the purpose of the leave is to enable them to obtain certain relevant services.

If an employee takes Domestic Violence Leave, she or he must inform the employer as soon as reasonably practical thereafter that the leave taken was Domestic Violence Leave. As such, advance notice might not always be expected, and employers should act sensitively and cautiously if seeking supporting documentation.

The employer is obliged to pay the employee’s full remuneration for each day of such leave that is taken.

Provisions in force

Two aspects of the legislation are in force at present. The period during which an employee must be facilitated in breastfeeding with time off or reduced working hours has been extended from 26 weeks to 104 weeks following the birth of the child.  The Act also currently provides employees with an entitlement to 5 days of unpaid leave per year where, for serious medical reasons, the employee needs to provide personal care or support to certain family members or persons with whom they live, and who is in need of significant care or support for a serious medical reason. No minimum service requirement applies.  Once this leave is confirmed, the employee, if requested to do so by the employer, must provide evidence (such as medical certificates).

Right to request remote work

Perhaps the most discussed aspect of the legislation is the right of employees to request remote work arrangements. This was the subject of a consultation by the WRC this summer, although the long-awaited Code of Practice (the “Code”) on the topic has yet to materialise and the provisions will not be commenced until such time as the Code is published. The approach for which the Act provides will:

• apply a qualification period of 6 months’ continuous employment before an employee would be entitled to request a remote working arrangement,

• require an employee to submit the request at least 8 weeks before the proposed commencement of the arrangement,

• require the employer to respond to any request no later than 4 weeks after the request has been made, but this period may be extended by up to 8 weeks if the employer is having difficulty in assessing the viability of the proposal,

• oblige the employer to consider the needs of both parties, and the provisions of the Code, when responding to a request,

• oblige the employer to provide grounds for refusal, if that is the case,

• empower the employer to terminate a remote working arrangement if it is having a substantial adverse effect on the operation on the employer’s business or where the employee fails to continue to discharge all of their duties of employment while working remotely.

Recourse to the WRC will be limited, as the WRC shall 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.

Right to request a flexible working arrangement for caring purposes

This new variety of leave has also yet to be commenced; it will apply to employees who either are a parent, or will be providing personal care or support to a person that is in a degree of relationship to the employee that the Bill recognises.

In addition to children of the employee, such persons include a spouse or civil partner, a cohabitant, a parent, a grandparent, a sibling and any person other than those already named with whom the employee lives in the same household.

To request this leave, the person affected must be in need of significant care or support for a serious medical condition.

To apply for a flexible working arrangement to care for an employee’s child, the child must be less than 12 years of age (16 years if the child is suffering from a disability or long-term illness).

The criteria for applying for such a flexible arrangement will be the same as those for the right to request remote work.  An employer must consider the request but is not bound to agree to it. Recourse to the WRC is similarly limited.

Recommended Action

Employers should review their existing contracts of employment, policies and procedures to ensure compliance with the various components of the new legislation.