Employment law in Ireland has been particularly dynamic in recent years.  Covid and its aftermath transformed the workplace and created a more determined approach to employment regulation. In consequence we now have a raft of new legislation and associated workplace codes of practice. 

Flexibility is key

Ireland has always had a flexible approach to regulating employment in order to ensure an investment and job-friendly ecosystem.  Social partnership between Government, employers and employees was a longstanding feature of that ecosystem, which negotiated national pay talks and working arrangements.  It fell in the aftermath of the 2008 economic crisis – partly due to a row over pay cuts and also to changes in politics and personnel.  However, the same flexible and consultative approach towards the development of new employment standards remains.  Hence the numbers of Codes of Practice – currently 15 – which allow for the trialing of new standards and adaptation as required to encourage compliance.

This consultative approach also informs the implementation of EU directives.  While Ireland has had a perfect score in the past on timely transposition, that slipped during Covid and now is classified as average within the EU.  Nevertheless, steady progress is being made.

Statutory Sick Pay

New entitlement to paid sick leave was legislated for by the Sick Pay Act 2022, which came into operation on 1st January this year. 

Ireland was one of the few EU countries not to have a statutory basis for the payment of employees who are absent due to illness.  Sick pay had been a discretionary employer payment until then.  Covid made it a public health issue and injected fresh impetus into an issue that has been floating for some years now. While many employers have illness payment policies, some smaller employers did not.  To ease the transition to the new statutory scheme, there is a staggered scale of paid sick leave entitlements from 3 days in 2023 to 10 days in 2026. 

Although regulations have yet to be published with the details, it is expected the employer will be obliged to pay 70% of the employee’s salary payment (excluding overtime or commission but including regular bonus or other regular allowance) to a limit of €110 per day for medically certified illness or injury work absence for an employee with at least 13 weeks’ service.  The cost of medical certification rests with the employee.

Work Life Balance Act 2023

The recently enacted Work Life Balance Act 2023 implements the pre-Covid EU Directive 2019/1158 aimed at improving the participation of women and promoting gender equality in the European workforce.  Covid and the difficulties it generated for workers with caring responsibilities added significant momentum to the draft legislation. which had a transposition deadline of 2nd August 2022.  Additions were made to the draft legislation to cover remote working and domestic violence leave. 

The new Act provides for:

  • parental and carer medical care leave
  • the right of parents and carers to request flexible working arrangements and
  • legal protections for such workers in the exercise of these rights. 

While the Act is now in place, many of its key provisions have yet to be commenced, with the implementation details currently being consulted upon within the relevant government departments.  Commencement is expected to be staggered, with medical care leave due to be commenced shortly.    The commencement of the right to request remote working is anticipated to follow later this year.  

Codes of Practice are also expected in relation to the right to request remote working and to provide practical guidance relating to the right to request flexible working arrangements.

  • Medical care leave

An entitlement to unpaid parental leave of 26 weeks for parents of children up to the age of 12 has been in place in Ireland since September 2020.  The Work Life Balance Act 2023 now adds an entitlement to up to 5 days’ annual unpaid medical care leave for parents.  This entitlement also extends to workers caring for spouses or civil partners, co-habitees and direct family members including parents, siblings and grandparents where the relative in question is in need of significant care or support for a serious medical reason.

  • Right to request flexible working arrangement for caring purposes

The right to request flexible working arrangements for caring purposes will require employment of 26 continuous weeks and at least 8 weeks’ notice to the employer of the proposed start of the flexibility arrangement being sought. 

The right of parents and carers to request flexible working will be confined to employees who are parents of children up to 12 years old (extended to 16 if the child has a disability or long term illness) and to carers as detailed in the section above.  Flexibility being the key consideration overall, while the employer must consider the request and must have regard to the employee’s needs, s/he can postpone, curtail or vary the proposed arrangement and can refuse the request for reasons formally provided to the employee.  If granted, the employer retains the ability to terminate it if the arrangement is having or would have a substantial adverse effect on the employer’s business.  The Act also provided anti-abuse provisions to allow an employer to terminate the flexibility granted if having reasonable grounds for believing the arrangement is being used for purposes other than those for which it was approved.

The right to request flexible working for caring purposes will be reviewed within 2 years of its commencement.  It is anticipated that this review may lead to a wider application of the right to request flexible working to other workers. However, that will depend on the outcome of consultations with employer and employee representatives arising from that review, and will be informed by the experience of the legislation at the time of review.

  • Right to request remote working

In Ireland the right to request remote working became a key, controversial and parallel issue as the pandemic receded.  It was folded into the then Work Life Balance Bill late last year.  It provides:

  • An employee with at least 26 weeks’ continuous employment may, setting out their needs, request remote working, at least 8 weeks before the start of the proposed remote working arrangement
  • The employer must consider both his/her needs and those of the employees and the requirements of the code of practice
  • The employer must either approve or reject or extend the reply time (by up to 8 weeks) for responding to the request, within 4 weeks of the request.

The Act also provides for termination or change or postponement of an agreed remote working arrangement.  It also contains anti-abuse provisions and penalization protection for employees who seek to or who exercise the right to request remote working.

  • Domestic Violence leave

Following recommendations from the Domestic Violence Review Report 2022 of the Department of Children, Equality, Disability, Integration and Youth, the Work Life Balance Act provides for up to 10 days’ paid leave in any consecutive 12 month period of employment, for employees who are victims of domestic violence.  What the payment entitlement will be has yet to be worked out and regulations detailing the specifics will follow.  However it is anticipated it will be a % of the employee’s pay, with a ceiling cap.  The recommendation, modelled on the sick leave rate, is currently that 70% of daily salary to a cap of €110 would be paid.

The Protected Disclosures (Amendment) Act 2022

The Protected Disclosures (Amendment) Act 2022expands and strengthens existing whistleblowing rights in Ireland.  It follows a review of the existing legislation, the Protected Disclosures Act 2014, and was the required transposition of the EU Directive which seeks to harmonise European whistleblowing regimes to a common minimum EU standard.  The 2014 Act in large part already met the standards of the Directive and is well regarded internationally.  However some amendments were required, such as the need to expand the definition of wrongdoing, a wider definition of who is defined as a worker and implementation of the Directive’s requirement for internal reporting channels.

Hence amendments were required. 

The 2022 Act, which became operative on 1st January 2023:

  • creates the new office of the Protected Disclosures Commissioner
  • mandates private sector employers with more than 50 employees to create and maintain internal channels for the receipt of protected disclosures (this requirement is staggered for smaller employments to apply to employers of between 50-249 employees only from the 17th December 2023)
  • sets up a system of acknowledgement (within 7 days) and feedback to those reporting (within 3 months, although this can be extended in some circumstances).

The new Act also gives legal clarity to issues litigated before the Irish courts under the 2014 Act.  Notably the legislation makes clear that interpersonal work grievances are not covered by the protections afforded to protected disclosures.