In this Q&A interview, Deirdre Malone, partner and head of employment law at EY Law Ireland, answers questions about what the EU's new Work-Life Balance Directive will mean to Ireland's employers and employees once, if as expected, it becomes part of life in Irish workplaces in the year ahead. 

What are the measures in the Work-Life Balance Directive and what will these changes mean to the workplace in Ireland once implemented?

The Work-Life Balance Directive encourages men and women to avail of more flexible ways of working to enable employees to share their personal caring responsibilities without sacrificing their careers. It does this with a goal of achieving greater gender equality by increasing female representation in the workplace and retaining that talent. The Directive recognises that across all EU member states, women are more likely than men to reduce their working hours or leave the workplace entirely to take care of children or dependent relatives.

The Directive requires Ireland, to introduce a suite of new family-friendly incentives. Once fully implemented into Irish law, employees will have more opportunity to seek flexible ways of working from their employers. Employers may also need to reimagine and adapt their expectations of a normal working week to retain key talent, something which has become much more apparent since the Covid-19 pandemic altered traditional working patterns, for office-based employees in particular.

What are some of the existing maternity and family-friendly rights that this new directive will complement?

Ireland is already ahead of the curve as we have strong benefits for employees in maternity, paternity, carer’s, parent’s and parental leave. Maternity leave is improved with extended leave (time off or reduced working hours) to facilitate breastfeeding breaks for new mothers from 26 weeks to 104 weeks following their child’s birth. Transgender males who become pregnant will be able to avail of the protections of maternity leave legislation.

In addition to force majeure leave, employees now also qualify for up to five days unpaid leave per year for medical care purposes. Medical care leave allows employees to take time off to provide personal care or support to specific people (family members/someone they live with) who are in need of significant care.

From Monday, November 27, employees have been able to take up to 5 days paid domestic violence leave per year. The introduction of domestic violence (DV) leave is an initiative of the Irish government and not a requirement under the Directive. It supports employees (or if specific people connected to them are impacted by domestic violence) to take paid time off to enable them to access certain supports. Employees must be paid in full for any DV leave taken.

It will be really important for employers to sensitively manage requests from employees for DV leave, as employees will not always be able to ask for this leave in advance. It may also be challenging for employees to discuss domestic violence with their employer. The government contracted with Women’s Aid over the last few months to develop policies, free training and support materials for employers to properly introduce domestic violence policies.

There is no minimum service requirement for an employee to qualify for these new benefits. 

In Ireland, workers are eagerly awaiting the rights available to most people within the EU to request greater flexibility and remote working options, particularly workers with caring responsibilities 

Unfortunately, some parts of the Work-Life Balance legislation have yet to commence in Ireland. The Workplace Relations Commission is expected to publish a Code of Practice to implement the final parts of the new legislation in early 2024. The Code of Practice will provide a framework for the remaining big-ticket items from the Directive that are eagerly awaited, including:

• A right to request remote work;
• A right to request flexible working arrangements for employees who have caring responsibilities. 

When will employees be able to formally apply to work remotely and/or work flexibly?

Once the Code of Practice is published, the last piece of the legislation will finally commence. The Code will outline a clear process to facilitate applications for employees with six months’ service to work remotely and/or flexibly. Remote working applications will be open to all employees. However, the purpose of flexible working is to support employees to provide care for their children or other specific people who need significant care. In other words, not every employee will be able to apply to work flexibly.

The application process for remote and flexible working will be in writing and quite prescriptive as to when the new arrangements start and end, what it will look like (eg, working from home two days a week) and how it will work in practice. Employers will generally have 4 weeks to respond to the application. They will be able to ask questions to understand the working arrangements. It will be possible to terminate the new working arrangements for a variety of reasons, such as if it is having a substantial adverse effect on the operation of an employer’s business due to, for example, the number of employees in the business.

What challenges will employers face in implementing the new flexibility measures?

Employers are likely to see an increase in the number of employees seeking to formalise their remote working arrangements. The greatest challenge is likely to relate to managing applications from groups of employees who want to compress their working week by working 40 hours a week over four rather than five working days. 

How do you anticipate the new directive will be received by employers and employees in Ireland?

The Code of Practice to support employers to manage remote and flexible working applications is one of the most eagerly awaited Codes in Irish employment law in decades. Employers understand that they need to meet employees’ demands to work differently. They want a framework within which to operate. Employees want to work smarter and more efficiently. This legislation opens the door to allow them to do that on a statutory footing.