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Negotiating the thorny pitfalls of emotional leave


Tuesday, February 13, 2018

As published in the Sunday Business Post, 11th January 2018.

Almost all of us will need to take ‘compassionate leave’ at some point, to care for someone close to us. When it happens, certain rules are in place.

It’s often said that death and taxes are the only inevitabilities in life. However, for employees, equally inevitable is the possibility that at some time or another, they will have to take what is generally referred to as “compassionate leave” – a family emergency or illness that necessitates them leaving the office urgently.

What is the legal position in relation to compassionate leave? Are employers obliged to facilitate employees who have to deal with urgent personal circumstances? Of equal importance: in circumstances where an employee simply must leave the workplace immediately, is their employer obliged to pay them?
As far as employers are concerned, can they take any action against an employee if there is actually no genuine emergency and the employee is abusing the system?

It’s not particularly well-known, but Irish law actually makes provision for leave in emergency cases. A little-known provision of the Parental Leave Act 1998 brought the concept of “force majeure” leave into Irish employment law for the first time.

Force majeure leave was effectively added to the 1998 act as an afterthought, but it is still a reasonably useful provision for employees to rely upon. It provides that an employee is entitled to force majeure leave where, for urgent family reasons arising from injury or illness of certain persons, the immediate presence of the employee at the place where that person is (either at home or elsewhere) is indispensable.

The leave applies in circumstances where the injury or illness occurs to a child, spouse, sibling, parent/grandparent or any other person who resides with the employee “in a relationship of domestic dependency”. In other words, a reasonably tight family group. It’s important to note that the test is fairly strict. The employee cannot, for example, take force majeure leave in circumstances where a friend or acquaintance is injured or ill – it is limited to the category of persons set out above.

As well as that, the act specifically refers to “injury or illness”, so only very certain cases attract force majeure leave. Other types of emergency, such as a burst water pipe or a suspected break-in, aren’t eligible. As well as that, the amount of leave that can be taken is very limited. Force majeure leave cannot validly exceed three days in any period of 12 consecutive months or five days in any period of 36 consecutive months.

For employers, the most significant aspect of the legislation, perhaps, is the fact that force majeure leave constitutes paid leave. In other words, the employer (unlike in the cases of maternity leave, adoptive leave, paternity leave or parental leave) has no discretion. The employee is entitled to be paid, albeit only for the limited number of days referred to above.

Other than that, Irish law makes no statutory provision for any form of compassionate leave. That said, it’s not unusual for an employer to provide for some form of compassionate leave either as a discretionary policy or, just as commonly, on an ad hoc basis.

A reasonable employer certainly won’t prevent an employee from leaving the office even if they have already used up their quota of force majeure leave. Equally, a reasonable employer may opt to pay an employee at its discretion during emergency periods, even though the employee is not actually providing services of value during that time.

However, as far as employees are concerned, it’s important to note that other than the (limited) period of force majeure leave referred to above, there is no provision in law for compassionate leave. In blunt terms, you are utterly dependent on how reasonable your employer is prepared to be (or not).

Finally, employers aren’t powerless if they suspect an employee is taking liberties. An employer who suspects that an employee is abusing force majeure leave (or an employer’s discretionary compassionate leave) is not without remedy.

It is entirely legitimate to trigger disciplinary procedures if an employer believes that an employee is not actually required to leave the premises because of an emergency.


Author

Patrick Walshe

PARTNER


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