Comparative Employment Law Update March 2022 [Webinar]Posted in : Comparative Employment Law Table on 24 March 2022
Our Comparative Employment Law Table has been updated and expanded to include recent Republic of Ireland developments (of which there are many).
In this webinar, Ciara Fulton and Síobhra Rush of Lewis Silkin joined Legal Island's Rolanda Markey to take a deep dive into the Table and discuss new ways of working and family-related rights in GB, NI and Ireland including:
- Ireland is tackling work-life balance and remote working head on – what does this mean for employers in Ireland? GB doesn’t need to implement EU Directives following Brexit but has already promised to match the new rights for carers in the Work-life Balance Directive. How will NI be affected considering its unique position post-Brexit? Will NI follow GB, Ireland or set its own course?
- Flexible working rights in GB are to be extended – who, why, what and when? And what about the right to request flexible working in Ireland and NI?
- Parental bereavement leave in NI – What does this mean for NI organisations and what will the consultation on extending the Regulations bring? What are the similarities and differences between GB, NI and Ireland on this important topic?
Transcript to follow
Rolanda: Good morning, everyone, and welcome to our first webinar with Lewis Silkin on comparative employment law across GB, NI, and ROI. We're delighted that you can all join us, and I can see that the numbers are still piling in.
Legal-Island webinars and podcasts are sponsored by MCS Jobs, and MCS help people find careers that match their skill sets perfectly, as well as supporting employers to help to build high-performing businesses by connecting them with the most talented candidates in the market. If you're interested in finding out how MCS can help you, then please head to www.mcsgroup.jobs.
Again, good morning, everyone. My name is Rolanda Markey and I'm part of the Learning & Development team at Legal-Island. My colleague, Christine, and I along with the team at Lewis Silkin have created this comparative employment law table to help highlight differences and similarities in employment law across the three jurisdictions.
I think it's probably safe to say that there's never been a time that there's so much difference across the three jurisdictions, so our table is really quite well-timed. We will update the table throughout the year and highlight key differences, highlight recent developments through a series of webinars that we scheduled with Lewis Silkin.
The table, if you're interested, is attached as a hand-out to this webinar, and you can download it from there. We will also drop a link into the chat with a link to where you can find the table on the NI and the ROI Legal-Island Hubs.
And so now to our two speakers. I'm delighted to introduce our speakers today. Ciara Fulton is partner in Lewis Silkin's employment, immigration, and reward division based in Belfast, where she also manages the office and the growing employment team. We're also joined by Síobhra Rush, who is a partner in the employment, immigration, and reward division based in the Dublin office. Both of you are very welcome. Good morning.
In today's webinar, we're going to be focussing on ways of working on family-related rights in GB, NI, and ROI.
Now, just before I hand over to Ciara and start the first section we're going to look at, we just have a couple of poll questions for you. My colleague Katie in the background is just going to pop those up onto your screen.
So the first question. "Do you agree that flexibility over work location or hours is increasingly important for incentivising staff?" So, yes, flexibility is becoming just as important as pay or bonus; yes, flexibility is increasingly important; or no. Just if you click on the screen to register your vote. We'll give that a couple of minutes just to let it fill, and then we'll show the results of that poll.
Okay, if you'll maybe close that there, Katie, and show. So, yes, the majority of people are agreeing that flexibility is becoming just as important as pay and bonus, and I think that certainly the reports in CIPD and elsewhere would certainly bear that out.
Next poll question. This is really more for our ROI audience. "Do you plan to introduce a remote work policy before the legislation is finalised?" Yes, or no, or we are still considering. So if you want to just select which option applies to you there.
Okay, and if we just maybe close that one there, Katie, and see what . . . All right. So a bit of a 50/50 split there between yes we are planning or we're just still considering it. We'll be looking at that right to request remote working and what's going to be involved in that.
The final poll question, then. "In terms of paternity leave, then, how would you describe the uptake of paternity leave in your organisation?" Would you say that it's poor, only a few employees annually take paternity leave; or good, there's a regular uptake; or there is no uptake at all and staff use annual or other leave instead of paternity leave? So if you want to vote for that.
Okay, Katie, we'll maybe leave that one there and we'll see what the results are. So that's interesting. And that surprises me, that result, I have to say, that there is a good uptake annually. So 63% are saying that there is a good uptake. That's certainly interesting. Next behind, obviously, poor, there are only a few employees take paternity leave. So that's interesting. We'll touch on that in Ciara's section. She'll be looking at paternity leave.
Thank you for your engagement in the polls.
So, before I hand over to Ciara, can I just remind you if you have any questions for Ciara or Síobhra, if you'd just pop them into the question box and we'll deal with Q&A at the end.
We've got quite a bit to get through, so first area we're going to look at then, and one of the areas that we've focussed on the comparative table, are the developments relating to family rights, and specifically the new rights for carers and working parents. In particular, EU member states need to implement the Work-Life Balance Directive by August '22.
Ciara, could you tell us about the directive rights in relation to paternity leave, parental leave, and carers' leave, and what this means for employers in ROI, and also why GB doesn't have to implement the directive, but has promised to match the new rights for carers?
So can you tell us about this, and also how you think NI will be affected considering its unique position post-Brexit?
That's a bit long-winded, but hopefully you got all of that, Ciara.
Ciara: Yes, absolutely, Rolanda. Thank you so much. So the Work-Life Balance Directive actually entered force, as you see there on the screen, in August 2019, and member states of the European Union have at least three years to implement it. So it's one of the first directives that is now going to be put before member states in circumstances where the UK has left Europe.
And family leave, parental leave, paternity leave, carers' leave, all of these rights and obligations are matters that are dealt with differently in the three jurisdictions in any event. So mostly throughout the three jurisdictions, we have some form of rights that may be relevant to the Work-Life Balance Directive, but in other cases, we won't quite be matching up to what is required by the directive.
And with all of these things, as always, it's the detail that's going to trip us up. It's the detail that's important. And from your perspective as HR practitioners, as employment law practitioners, it's really important to be up to speed with what these developments mean for you.
The Work-Life Balance Directive
So from August '22, the Work-Life Balance Directive will be enforced and be expected to be implemented in member states. It introduces four main rights. First of all, a right to paternity leave for fathers or equivalent second parents. That's a 10 working days' leave around the time of the birth, and it's to be compensated at a level at least equivalent to sick pay.
It also introduces four months' parental leave. Sorry, it doesn't introduce that. It strengthens that right. So there's already an existing European right to parental leave, and it makes that stronger by ensuring that at least two months of the leave can be transferred between spouses or partners. It's compensated at a level set by member states, and parents will have the right to request to take the leave flexibly.
Thirdly, the Work-Life Balance Directive introduces carers' leave of at least five days per year for workers who have to provide personal care or support to a relative or a person living in the same household and who's in need of that care and support.
And fourthly, then, it introduces a right to request flexible working, including reduced hours, flexible working time, or flexible place of work to working parents of children up to at least 8 years old and all carers.
Now, Síobhra is going to deal with flexible working later, but first of all, I'm going to look at each of the first three components of the Work-Life Balance Directive and how they either are already catered for within Northern Ireland, Republic of Ireland, and GB, and/or what changes might need to be made and what changes you need to be aware of in your practice to watch out for as these come down through the line.
So if we could move to the next slide, then, please?
So turning first of all to paternity leave, I was a little bit surprised, frankly, when I realised that actually there's no European right to paternity leave. And as you'll have seen from the poll there, most people answered that fathers take up paternity leave at quite a high level within their organisation. I know my husband certainly when I had children, and it was a very good support to have upon the birth of a baby.
So as you will probably know, therefore, in Northern Ireland, GB, and the Republic of Ireland, there are existing local rights to paternity leave, and the Work-Life Balance Directive introduces a right to 10 working days' paternity leave on the birth of a child.
And in ROI, we already have two weeks, which must be taken consecutively within six months. In NI, employees can take one or two weeks' paternity leave, but within a shorter period of 56 days. And in GB, it's the same. So we already have that much of the paternity leave obligations under the Work-Life Balance Directive covered in all of the three jurisdictions.
The Work-Life Balance Directive says that you shouldn't make the right to paternity leave subject to a length of service qualification. That's already the case in Republic of Ireland, so there won't be any changes there.
However, in Northern Ireland and GB, employees must have at least 20 weeks' service by the 15th week before the expected week of childbirth or the date of notification of adoption in order to take their paternity leave. So in that regard, NI and GB won't be compliant with the requirements of the directive.
We also saw that the directive requires a payment for paternity leave, which is equivalent to sick pay. And again, all three jurisdictions deal with pay slightly differently. In ROI, employers aren't obliged to pay employees themselves. However, they are entitled to a paternity benefit of €250 per week, provided they meet the qualification requirements for paternity benefit, which are based around your social security contributions. So there may be issues there.
With paternity pay in NI and in GB, employers do pay the paternity pay, and it's at a rate of £151.97 per week, or 90% of earnings if that happens to be less.
So as you can see, SSP is only £96.35, so we would actually be meeting the requirements of the directive in NI and GB with regard to pay. However, in ROI, changes may be needed.
I talk about NI and GB and whether or not we comply and whether or not we will comply, and I think it's just important to pause and discuss that ever so briefly at this stage.
Of course, ROI is still part of the European Union and is obliged to implement the directive. In Northern Ireland and GB, of course, we're no longer part of the European Union, and so technically, we would not be obliged to implement the directive.
Certainly, in GB, that is the case. However, in Northern Ireland, we of course have the Protocol, and the Protocol has an important provision in Annex 2, which requires no diminution in rights as a result of Northern Ireland leaving the European Union. Some of those rights relate to equality between men and women, and that's specifically mentioned as one of the areas where Northern Ireland should not be as diminution as a result of the UK leaving the EU.
So in my view, the non-diminution requirement may well mean that Northern Ireland needs to look at this length of service requirement for paternity leave and needs to ensure, therefore, that we are implementing that provision of the directive in Northern Ireland.
However, with no Assembly at the minute, it remains to be seen whether or not that will actually happen. And of course, with all the political outcry and resistance to the Protocol in Northern Ireland, it remains to be seen, and I'd be very sceptical about whether or not that will actually happen.
However, individuals do have rights under the Protocol, so if they believe that their rights are being infringed as a result of Northern Ireland and the Assembly failing to keep pace with developments in European legislation around the equal treatment of men and women principle, then they might try a claim about that in the tribunal. The Equality Commission have powers to support them in that sort of claim.
Equally, they could bring judicial review proceedings in the High Court or other types of proceedings, and the Human Rights Commission also has the power to assist in those sorts of actions.
So a very interesting area, and this is very much a test case to see how Northern Ireland and the Protocol works in that non-diminution principle.
From a GB perspective, as I said, the GB government doesn't have to introduce the Work-Life Balance Directive, but there is a non-regression principle in the Trade and Cooperation Agreement. It does say that GB, not only will it not allow the level of protection afforded to employees to slip below what was in place at the end of the transition period and exit day, but also that both parties, so the EU and the UK, will strive to increase the level of protection available to employees. So does that require the UK to look at this area, and in particular the length of service qualification?
Interestingly, the Conservatives already had in their party election manifesto proposal that they want to make it easier for parents to take paternity leave. So that may mean that we see some movement in this area, which they might indicate is not linked to the Work-Life Balance Directive and is part of their Conservative Party election manifesto, but you wonder how much is influenced by the Trade and Cooperation Agreement and wanting to still be aligned to Europe in some way.
Looking at parental leave, then, if we can have the next slide, parental leave is something that has been regulated by Europe for some time. And so again, we see that we have various rights in three jurisdictions to parental leave.
The directive itself provides for a minimum period of parental leave for parents of up to four months' leave for children up to age 8. Now, Northern Ireland, GB, and Republic of Ireland all exceed that, as you can see there.
In the Republic of Ireland, employees can take up to 26 weeks' parental leave for children up to age 12, or 16 if the child has a disability.
In Northern Ireland and GB, you can take up to 18 weeks' parental leave, so slightly less, up to a child is 18 years of age. So slightly more in terms of the age of the children you can take the leave for.
The directive provides that employees will have a right to request to take parental leave in a flexible way. However, in NI, GB, and ROI, the rules are quite strict around how employees can take parental leave.
So, for example, in ROI, leave must either be taken as one continuous period or in blocks of at least six weeks, whereas in NI and GB, it's up to four weeks in any one leave year, or otherwise as your employer agrees.
And that is something to point out here. So whilst this is the default position and the legislative position, often employers will provide a degree more flexibility around these things.
The directive provides that two months of the parental leave can't be transferred, and NI, ROI, and GB all are compliant with that, in that in ROI, employees can transfer after 14 weeks of the leave, and in NI and GB, you can't transfer the leave at all. And the reason behind that was to encourage men to take up more of the parental leave, and so that men weren't transferring it to women and then women taking both sets of parental leave.
Qualification period is okay, and all three jurisdictions require one year's service.
A payment or allowance is provided for by the directive, and not quite as prescriptive with paternity leave. It's to be defined by member states so as to encourage the taking up of the leave. But as you can see, in all three jurisdictions at the minute, parental leave is unpaid.
So in that regard, then, again, ROI are obliged to introduce it. So might they introduce a bit more flexibility around how the leave can be taken and/or some payment for parental leave?
Again, with NI and GB, we have the non-diminution and non-regression principle that we've covered before. So we might see some movement in that area, but to date there has been nothing.
And I just want to mention briefly, as well, that there is also a right to five weeks' parents' leave in the Republic of Ireland, which is a right to take leave before a child's second birthday, which is paid.
So that may be an area which we may see developments in, perhaps as well as or instead of in the area of parental leave legislation. So it's very much watch the space. We don't know which way the government will go in trying to ensure we meet the obligations of the Work-Life Balance Directive.
In terms of carers' leave, then, if we could just move to the next slide, that's being introduced at European level for the first time. And again, this is an area where the different jurisdictions deal with carers' leave differently.
The social policy reason behind this is that we have an increasingly aging population, and increasingly, workers are being put under pressure to help care for elderly or sick relatives.
And the idea and social policy behind this is to allow employees some flexibility and some time off work to perhaps take an elderly relative to a medical appointment or to assist them if they need some care, and perhaps provide relief for a permanent carer and that's sort of thing
It's not a very long length of leave. It's only five days. But it can be five days per year, or it could be five days per parent. That's left up to the member states themselves. They can use other criteria for that.
In the Republic of Ireland, they're very much ahead of the curve when it comes to carers' leave. They already provide that employees can take between 13 weeks and 104 weeks unpaid carers' leave to care for someone who's in need of full-time care and attention. That leave can be taken either as a two-year period or in minimum blocks of at least 13 weeks.
In Northern Ireland, there's no right to carers' leave. If someone wanted to care for a relative, they'd have to do that by using either annual leave or making flexible working requests, unpaid leave perhaps, or dealing with refusal to grant time off as disability discrimination.
In GB, interestingly, the government has announced in September plans to introduce a right to one week's unpaid carers' leave for people with a long-term care need. That would be a day one right and will be allowed to take it flexibly.
We've no set timeframes for that in GB, but it's to be introduced as soon as the parliamentary schedule allows. And so that would actually work quite well with the requirements of the directive, even though GB isn't obliged to implement it.
Member states can require a substantiation for the need for the leave. In ROI at the minute, where you take carers' leave, the person has to be certified as in need of full-time care and attention. That's by the department of . . . I think it's social welfare. Sorry, employment affairs and social protection.
In GB, there won't be, interestingly, a need for certification, but if the employer has concerns or worries about the leave, the government seems to be indicating that they treat that as a disciplinary process and they can request proof of the need for the leave.
Member states are encouraged to provide a payment or allowance. It's unpaid in all two jurisdictions. Northern Ireland doesn't have it. But it's only an encouragement for this aspect of the Work-Life Balance Directive.
So with paternity leave, the Work-Life Balance Directive says it must be paid at the level of sick pay. For parental leave, it's saying a payment or allowance that would encourage people. So there is a requirement to pay, but it's left to the member states what the appropriate level is.
With carers' leave, they're saying it's encouraged to provide a payment or allowance, but not actually requiring it. So it remains to be seen whether the governments in the three jurisdictions will do anything there.
So in ROI, reforms I don't think personally will be needed to comply with the Work-Life Balance Directive unless the government as a matter of policy decides that pay should be introduced.
Northern Ireland, again, we have this non-diminution principle in the Protocol, which might well require something to be done in this area.
Also, Northern Ireland tends to follow GB developments, so because GB are introducing carers' leave, we may well see the Assembly introducing carers' leave for that reason. Of course, that would politically be easier than doing it for the purposes of complying with the directive.
And as I said, GB already has plans to introduce carers' leave. So there will be some new developments there.
Finally, I'm going to touch briefly on force majeure and urgent family leave, which is another matter that's mentioned in the Work-Life Balance Directive. This is where employers are required to allow employees time off for urgent family reasons where illness or accident make immediate attendance of the worker indispensable.
That's more or less provided for in all of the three jurisdictions at the minute, so I don't believe that we're going to see any further developments there.
Slight nuances between ROI and the UK, in that in ROI the entitlement is 3 days in any 12 months or 5 days in 36 months, and that's paid for. The right to force majeure leave in ROI is paid by the employer, fully paid.
In NI and GB, it's what is reasonable in the circumstances. There's no limit on it, and it's unpaid. It's unpaid leave.
So in those circumstances, then, I don't think that we're going to see any changes to force majeure or urgent family leave within the three countries.
So as you'll see, then, the Work-Life Balance Directive is going to mean changes definitely in ROI, possibly in NI, and seems to be already influencing, at some level at least, the legislative agenda in GB. So it'll be interesting to see how those areas develop. It's something for practitioners to keep in mind and be very mindful of as they deal with requests in the near future.
So I'll hand back to Rolanda now for flexible working.
Rolanda :Thanks so much, Ciara. I didn't realise that there wasn't allowed to be a service requirement for paternity leave, so that's really interesting.
Keep sending your questions. We've got a few there, but we will take them at the end.
So we're going to move on to Síobhra now, who's going to look at flexible working. Obviously, the pandemic has accelerated changes in working practices, which is including an increase in alternative working models and policies that focus on flexibility.
Síobhra, can you tell us about the changes to flexible working rights in GB? And it is obviously another area that's covered by the Work-Life Balance Directive, so what is the position likely to be, then, in ROI regarding flexible working?
Síobhra: Thanks, Rolanda, and good morning, everybody. It's nice to be here to talk about the various initiatives around work-life balance and how the different jurisdictions are implementing the breadth of them. And Ciara has covered a lot of the types of leave. In ROI, where I predominantly advise, we've probably introduced in a more haphazard manner a lot of what is required bar flexible work.
You'll see that from the comparative table, in GB, employees can make a flexible work request where they have continuous service of 26 weeks. So in GB and NI, it is compliant with the directive.
Can I just actually step back just to describe that when I talk about flexible work, I'm not necessarily talking about remote work for ROI, because we're treating that separately. And in fact, it's being dealt with by a different department.
So a lot of people, and probably correctly, put it all in under the same umbrella, but actually, we talk about it slightly differently in that flexible work would incorporate things like flexi time, a compressed working week, different start or finish times, or term-time working, whereas we deal with remote working separately.
In any event, coming back to the requirements in GB and NI, the employer currently has a three-month decision period, and that can be extended by agreement, to consider a request and discuss it with the employee if that's appropriate, and then notify the employee of the outcome.
Helpfully, there are specific grounds on which a request can be refused. That would include the burden of additional costs, detrimental effect on the ability to meet customer demand, detrimental impact on quality, if there's an insufficiency of work during the period when the employee proposes to work, or if there's planned structural changes, for instance, redundancies coming down the line.
The right to request flexible work doesn't have to be for a permanent arrangement. It could be for a temporary one. In any event, the government in GB has reopened its task force and is consulting on reforming the right to request flexible working, which is probably going to be less flexible for employers, ironically. So employees will be able to request flexible working from day one rather than having to have six months' service.
The deadline for dealing with requests may be shortened. Employees may be able to make requests more frequently. So there's a limit of only making one request within one year, but that could be shortened. So there could be multiple requests within that time.
There's no proposal to change the penalty for failing to deal properly with a request. That's currently capped at about £4,500, I think, from the beginning of April. But some employees whose requests are refused may be able to claim indirect discrimination. And you'll be aware if you have business operations there that there is no upper limit on the compensation that's recoverable for indirect discrimination in GB.
The proposed changes probably aren't as wide-reaching as the government had originally suggested. So I think that in two previous proposals, there was going to be a requirement to advertise whether flexibility would be allowed in job vacancies. That has been taken out, but there will be a requirement to update flexible work policy.
Now, given the state of flux that we're in since the easing of restrictions and the real war for talent that is going on in terms of attracting and retaining talent, there is an opportunity there for a business to stand apart from their competitors by offering more flexibility than what's required by the legislation.
Bear in mind that those who are looking for work may have higher expectations since working from home during the pandemic, and it's probably an employee's market in that respect.
Also, businesses are likely to have made changes to their approach and to their ways of working in terms of flexible working, having developed new policies for the post-COVID and the new normal, as we call it, in terms of hybrid working arrangements, etc.
That said, the flexibility that I guess a lot of employers had to implement during COVID will have created expectations for employees. And what we would say is that if a request is being refused, it is important to ensure that the grounds for refusal can be justified with hard evidence, because employees will obviously look to use their successful working-from-home arrangements during lockdown as justification for requesting the flexible work arrangement.
So the government is proposing to reconvene its flexible working taskforce to provide wider advice on best practice, and that'll include a focus on the where of work, including hybrid working. So remote-working arrangements will come into flexible work arrangements in GB. That's not the case in ROI.
It also says that it will launch a call for evidence looking at the sorts of extra flexibility that people might need to help them live their lives the best way they can, including the need for ad hoc and informal flexibility.
The consultation also doesn't say anything about how refusing flexible working requests can amount to indirect discrimination against women or other groups with protected characteristics, or potentially failure to make reasonable adjustments. So that's something to keep an eye on where a request is being refused, whether it might look neutral, but indirectly affect a greater proportion of a group of workers with protected characteristics.
If we can just move on to the next slide in terms of flexible work in ROI, we haven't really moved on flexible work. It's the one area of the Work-Life Balance Directive where ROI is behind.
Now, in 2020, the Minister for Equality and Children did introduce a consultation on flexible working arrangements, but we haven't seen a report of that consultation and we don't really know the outcome or what is proposed in terms of our compliance on that point under the Work-Life Balance Directive.
I guess it can be difficult to advise in particular, because a lot of the kind of work-life balance stuff comes from the Department of Enterprise, Trade, and Employment in ROI, whereas this is coming from the Department of Equality and Children. So it means that there are other areas where employers just need to be cognizant, that even though it's not necessarily coming from the Department of Enterprise, there may still be compliance required from an equality perspective.
We do also obviously have our . . . Sorry, I've just lost the slides here. I will talk about the right to disconnect, which we have under the Code of Practice, and we are looking at introducing legislation around remote work, which caused a bit of a media storm in January.
And then some people will be aware that there are about 20 Irish companies, I think, who are trialling the four-day working week. There are more than 30 companies in GB and NI who are participating in this. It's being coordinated by 4 Day Week Global in partnership with the UK think tank Autonomy.
And basically, what is involved is for six months, employees in participating companies will work 80% of their usual hours without any loss in pay and look to maintain same levels of productivity.
So I think that a lot of businesses will be keeping an eye on this, because again, while not necessarily a legal requirement, it will create expectations in terms of recruiting and maintaining talent.
There will be challenges, as well, in terms of Organisation of Working Time and Health and Safety in circumstances where people are potentially working longer days in their four days than previously.
The Right to Disconnect
So just moving on in terms of remote work and what has happened in ROI with the Code of Practice and the right to disconnect, if we can move to the next slide. So this was part of the strategy for remote work, and the Department of Enterprise, Trade, and Employment introduced the Code of Practice in March last year.
If you bear in mind the timing around this, which is that we were coming out of our second lockdown, people were definitely . . . Those who could work from home were probably definitely working more, and there was a lot of complaints and reports of just the line between work and home becoming very, very blurred.
So it was very publicly announced that it was all about creating the culture of good work-life balance and breaking bad habits whereby people felt obliged to respond to messages out of hours. And the code very crucially refers to a right to maintain clear boundaries between work and leisure time.
So we have three pillars, and they are the right not to work routinely outside of normal working hours, the right not to be penalised for refusing to work outside normal working hours, and then a duty to respect a colleague's right to disconnect.
Now, just to bear in mind, the codes of practice in ROI are not legally binding of themselves, but they can be used in evidence against employers where there's a claim for breach of other employment rights.
Now, even though there was huge publicity around it, it wasn't really any new law. There was nothing groundbreaking in it. It primarily addressed rights that already exist under Irish employment law. It probably went slightly further. And certainly in terms of employees knowing their rights, it highlighted what their rights were in terms of working time and health and safety.
So, for instance, it very much focussed on normal working hours, the rest breaks, the weekly working maximum hours. And just bear in mind that unlike the UK, Ireland didn't opt out of the 48-hour maximum working week, but there are some exceptions.
The Organisation of Working Time Act had always included an obligation to record working time, even though employers may not have been compliant with that.
And then from a Health and Safety perspective, we saw an emphasis on the provision in our legislation around health and safety on an employer to manage and conduct their work activity in such a way as to prevent, so far as it was reasonably practical, any improper conduct or behaviour that could put health and safety at risk.
Now, back in 2005 when that provision was introduced, it was very much focussed on bullying in the workplace. So we're now seeing a little bit of a pivot in terms of this coming into play for working time issues, as well.
I think that what was helpful in the Code of Practice was that it does also call out employee obligations. So in a lot of these claims, you'd have seen employees bringing a working time claim for breach of the Working Time Act, and all of the obligations falling on the employer in terms of not having records enabling them to defend those claims.
But the Code of Practice does now say that employees must cooperate with their employers to ensure that they manage their own working time. They must cooperate with the employer to take care of their own health and safety, use the working time recording systems when they're working remotely, be mindful of their colleagues' right to disconnect, and notify their employer if they can't take any rest breaks.
So I think that that was quite helpful in terms of kind of re-educating employees that all of these obligations don't just fall on the employer.
And also, it did call out that it's not an absolute right to disconnect. So the code recognises that there can be occasional legitimate situations where business and operational reasons require contact out of normal working hours.
But again, it was really just about breaking bad habits, educating managers about the tone of their emails, etc.
Even though the Code of Practice did recommend that employers develop a right to disconnect policy, what we've seen with larger clients is that they've probably updated their working time policies. They may have updated their work-life balance policies where they had them, or they may have updated their health and safety policies.
The biggest change that we've seen is probably retraining of managers and staff in terms of the right to disconnect being recognised in the Code of Practice here. Also emphasising to managers that they really must recognise and act when they notice that an employee is unable or reluctant to disconnect, and to examine whether that's linked to excessive workload.
The biggest change probably that I've seen from working with clients is that we now see this email footer saying, "Even though I'm sending this communication during my working hours, if it's not marked urgent, there's no obligation on you to respond until it is within your normal working hours".
We haven't yet seen any claims in the WRC arising out of the Code of Practice, but it is an area to watch, I think.
Moving on, then, just to remote work and a proposal that was met with much fury in January, which was around the legislation that will introduce a right to request remote work. And again, in GB and NI, this is included in flexible work.
But what we have is a draft scheme of a bill. It proposes that employees with six months' service, so similar to the Acas Code of Practice on Flexible Work, will be entitled to make a request for remote work. They have to set out information in terms of the work location, how many days they want to work remotely, etc. And same as GB and NI, it will be a 12-week period to respond those.
The draft scheme also includes 13 reasons as to why an employer may be able to refuse requests. Now, it's not limited to those 13 reasons, but that has created a huge hullabaloo here. A lot of employee groups are saying that these are 13 opt-outs and they effectively give an employer every ground to say no to remote working.
I think that we will see some changes around the law, because in particular, in terms of claims that employees may be able to bring if a request is refused, they can't bring a claim to the WRC if the employer has a rationale and has refused.
So they can't challenge the employer's rationale under what is proposed at the moment, and government is facing a huge pushback on this. Again, that's another one to watch.
There will be a fine for employers who do not have a remote working policy that's up to €2,500.
Now, because we have this gap between the dropping of restrictions and people are getting back to work now, most employers may have already put policies or guidelines in place for remote working arrangements, and these should be reviewed to ensure that they comply with the legislation once it's enacted.
Employers should work with their various stakeholders in the organisation around developing health and safety and IT requirements.
The Code of Practice doesn't address remote work abroad. I think it's very unlikely to do that because of the social welfare, employment law rights, regulatory implications.
I know that from working with clients, some of them are allowing it, but maybe only for up to one month, or if they have an establishment in a jurisdiction where an employee wants to work. But certainly in terms of complying with the directive, there's no requirement to include a right to remote work abroad.
So with that, I'll hand back to Ciara to finish up, and hopefully we'll have a couple of minutes for questions at the end. Thank you.
Parental Bereavement Leave and Pay.
Ciara: Thanks, Síobhra. So I'm just going to finish up now with the area of parental bereavement leave and pay. If we can move to the next slide, Katie. Great.
So this is a piece of legislation which we have known for some time that Northern Ireland was going to introduce. And I must say on a personal level, I think it's the right thing, and I'm very delighted to see it coming in, in this jurisdiction.
Parental bereavement leave and pay is something that was introduced in GB with effect from April 2020, and it allows parents whose child dies before the age of 18 and if they're over 24 weeks gestation to be entitled to two weeks' paid bereavement leave.
In order to avail of the leave, the parent must be the child's parent, and in order to be paid, they must have at least 26 weeks' continuous employment.
Parental bereavement leave is the same rate of pay as for maternity or other paid family leave, £151.97 per week, or 90% of average earnings if that's lower. That's the situation in GB.
Diane Dodds announced some time ago that Assembly was going to introduce similar legislation here. So hot off the press this week, that legislation received royal assent on 21 March, so just three days ago. So we now have the Parental Bereavement Leave and Pay Act of Northern Ireland 2022. This is the framework legislation, which requires the department to put in place the actual legislation, which will give employees these rights.
It's due to become law from April this year, but we're not yet aware of what date it will actually take effect from, so when employees will have the rights in the unfortunate event if they have a stillbirth or lose a child. The indications are it'll apply to deaths some time between April '22 to April '23, but that's something that's to be provided for in the actual regulations.
And also, the regulations are going to take the law in Northern Ireland further than in GB, in that the Assembly has committed to ensuring that the right to parental bereavement leave and pay will extend to miscarriages before 24 weeks gestation of a pregnancy, which is absolutely fantastic and absolutely needed to support women at an absolutely terrible time.
And there were calls for GB to follow suit, but they have confirmed that they are not going to follow suit with that.
That right, it's indicated, will be introduced from in or around 2026. So that may not come in as quickly, but there is a lot of support for it in the Assembly. Of course, the Assembly isn't sitting right now, though, so it just may take some time for that reason.
Great news for Northern Ireland that we will be providing parents with that support. Many employers would have done so informally anyway or through the provisional sick leave in these terrible circumstances, but great that there's actually something concrete for employees who maybe weren't lucky enough to have employers who were so supportive.
If we move to the next slide, I'll just touch on situation in ROI briefly. In ROI, there is no right yet to parental bereavement leave and pay, but there are various bills which would provide some form of potential for legislation to be introduced in this area.
The Parental Bereavement Amendment Bill 2019 would amend the Parental Leave Act to provide for 10 days' parental bereavement leave on the death of a child who's under 18 or if they're stillborn after 24 weeks. So it's very similar to the UK and Northern Ireland.
To be taken within 42 days of death is what that proposes. I should've said in Northern Ireland and GB, the proposal is that the leave may be taken within 56 days or eight weeks of the death.
There is, of course, still a right to take maternity leave in any of the jurisdictions if a baby is stillborn after 24 weeks.
And then there is an interesting bill before the Seanad at the minute in the south introduced by Ivana Bacik, which would amend the Organisation of Working Time Act to allow parents to take time off either for miscarriage before 24 weeks or in the event that they're undergoing IVF treatment.
And so that's progressed quite well through the Seanad. It's at the third stage of debate and reading, but it has been stalled since about 2021. So I'm not quite sure when that might be introduced in the Republic of Ireland.
So those are developments in parental bereavement leave and pay, as well, that are national developments.
I'll just hand back to Rolanda now, and we're happy to take any questions that might have come in.
Rolanda: Thanks for that. That was a very quick run-through, both you and Síobhra. There's lots covered there. There are quite a few wee questions, and I'll go through some of them and see what we can get through in the next 10 or so minutes.
In terms of carers' leave in GB, is this an entitlement to one week per year, Ciara? So it talked about in GB, the carers' leave, is that per year or is that entirely in your employment?
Ciara: So we don't have the detail of any legislation at the minute. It's a very good question. I haven't seen anything that would suggest whether it's per year or per person or whatever. But it's literally not yet legislated for, so we don't have the detail around that just yet. Something to watch.
Rolanda: Thanks. Yeah, exactly. Thanks, Ciara. In terms just of parental bereavement leave, would the time off in terms of the miscarriage, although you've probably already answered this question, apply to both parents? If it's a miscarriage after 24 weeks, the mother would be entitled to maternity leave anyway. But is this parental bereavement designed to apply generally to both parents?
Ciara: Yes. I understand it's designed to apply to both the father and the mother. And fathers need the leave as much as the mothers in these circumstances.
Rolanda: Yes, absolutely. That makes sense.
In terms of the right to request remote working, Síobhra,
I know that we don't have a date for that yet, but do you have any idea, maybe? I know maybe all of the uproar and the sort of controversy may be delaying things a little bit.
Síobhra: Leo Varadkar, who's the Tánaiste and Minister for Enterprise, had indicated timelines of having draft legislation by Easter with a view to having a bill passed by the summer. Now, obviously, global events have taken over, as well, so I don't know whether that will mean a slowdown on that timeline.
And also probably the fact that the claims process or the gap in the claims that I highlighted might also mean that they need to go back to the drawing board a little bit.
But it was to be hoped by July. I'd say it'll be July at the earliest. It could be the end of the year.
And in terms of flexible work, and I know that's a wee bit further down the line, do you have any timescale for that in ROI, roughly?
Síobhra: No. We don't even have a report on the consultation that was undertaken in January 2020. I mean, it could be escalated in particular because for International Women's Day, Roderic O'Gorman, who's the Minister for Equality, did make some announcements. But again, I think unlikely this year.
Rolanda: Okay. Ciara,
In terms of parental leave, you mentioned the ages of the children. Just to clarify, then, is the age up to 18 just for children who would have a disability?
Ciara: In NI and in GB, no, it's for all children.
Rolanda: Okay. Right. Just let me scroll down here a wee bit.
In terms of just flexible working, the right to request a temporary change as opposed to permanent, does that exist in GB and NI, or is it just GB?
Síobhra: Yes. I think it's GB and NI, yeah. And I guess I should say even though we don't have a statutory right to make a request, obviously employees could request it and it could be agreed contractually between employers and employees.
Rolanda: Yeah, and I suppose that if somebody has asked that, making a request for hybrid working, there's nothing to stop an employee doing that at the moment. And some employers have probably been quite proactive about dealing with those.
Síobhra: Yeah. I think these are our statutory rights that are coming down the line, but I think that employers really need to think about putting policies in place now. Not so much a legal exposure, but more about talent retention and attracting top talent. Expectations are high among employees given where they have been in a position to be able to work remotely, work flexibly, etc.
So I think that employers should be putting in place a policy to allow employees to make these requests, and then when the legislation comes in, insofar as it's not compliant, they can just amend their policies. It gives them a little bit more control, as well, over the process now and clarity for employees about how to go about doing these.
Rolanda: Yeah. An interesting question here I've never thought about before, but
Can a flexible working request be used to request an increase in working hours, for example, from part-time to full-time? Not quite sure that's what it's designed for, but what do you think?
Síobhra: I wouldn't have thought so. I mean, we don't have them here. I'm not sure whether the Acas Code of Practice provides for that. It does say that insofar as somebody has reduced their working hours, you can agree that they would be increased or that they'd go back to their old role when that temporary arrangement expires.
So I wouldn't have thought that the statutory right would include a right to request increasing the hours, but there's no reason why you couldn't just approach your employer and say, "Can we?"
Or if, for instance, you did a temporary arrangement and you want to finish that early and go back to the prior working arrangement, you can do that.
Rolanda: Yeah, it's an interesting point. I suppose that maybe you do two and a half days, and actually flexibility-wise for childcare it makes it to do three full days. But I suppose there's a difference going from part-time to completely full-time, which is maybe a new role.
Rolanda: In which case, the employer might feel the need to advertise it or whatever.
Just give me one second. Somebody is asking, actually, about SSP in Ireland, Síobhra. And something that struck me there, Ciara, when you mentioned that . . .
I think it was paternity leave should be at least sick pay rate. And I thought that's interesting, because SSP isn't yet in, in Ireland. So that could complicate things a wee bit with paternity leave in Ireland?
Either of you . . .
Ciara: Yeah, so we had quite an interesting chat about this amongst ourselves. What the directive says is that you must make a provision to pay for the paternity leave at least at same provision as is made for sick leave. So initially when you read that, you think that means you must get paid SSP-type equivalent.
Ireland doesn't have SSP, as you rightly point out, Rolanda. But what it does provide is for an illness benefit for people who are absent from work due to illness.
And so if that is the level of benefit provided to someone who is ill by the state, then actually the way I read the directive is that the obligation will simply be to provide a benefit which is at least equivalent to the illness benefit for someone who's on paternity leave.
Now, that said, and Síobhra may want to touch on this in a bit more detail, but there is consultation and discussion about introducing a statutory sick pay in the south. I'm not quite sure what stage that is at, at the minute, but that may change things.
But the interesting thing about illness benefit versus other benefits provided to employees in the south at the minute is that it's actually more. It's £350, whereas benefits for the likes of maternity leave and for other paid leaves are around £250. So even by my reasoning where you have to match the illness benefit, Ireland is still not doing that, because it's £100 less per week that you would pay to somebody on paternity leave versus someone who was on sick leave.
So that's how I think it might play out, but I do think it's interesting, and it's one of these where we might see developments.
Rolanda :Yeah. Certainly
In terms of SSP, then, Síobhra, any update on the position when that might come in? It's another one that seems to have had a wee bit of pushback on it?
Síobhra: Well, we've a statutory sick pay bill, which was introduced last year, but it's still going through the Dáil. We haven't heard from our sources when that might be coming through. It was quite detailed in terms of saying, "There will be paid sick leave for up to 3 days in 2022, going up to 5 days, up to 7, and ultimately 10 days by 2025". But it's still not law.
Rolanda: Yeah. Well, listen, thank you so much. We've got through so much there. I'm sure you're both exhausted.
Just to let you know that our webinar will be uploaded onto the NI and the ROI Legal-Island Hubs later today. It will also be turned into a podcast available from all podcast services.
And our next webinar, then, with Lewis Silkin will be on 23 June. Now, obviously, we decide nearer the time what we're going to cover on that, and it depends what is hot at that time. It's probably safe to assume there won't be that much happening in Northern Ireland, though we'll see. We never know. We could be surprised.
But thank you both so much for your time. We will be sending out an email afterwards with the slides and obviously a link to the table if you weren't able to download it. We look forward to seeing you again on 23 June.
Thank you, Ciara, and thank you, Síobhra, for your time.
Síobhra: Thanks very much. See you next time.
Rolanda: Bye all.
More on Leave
The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.