Rights Commissioners set ground-rules for force majeure family leave

By early 2000, after Ireland's legislation implementing the EU parental leave Directive had been in force for around a year, several ground-rules for the application of "family emergency" "force majeure" leave had already been established in individual cases referred to the third-party Rights Commissioners' service.

Ireland's Parental Leave Act, transposing EU Directive 96/34/EC of 3 June 1996 on parental leave (TN9801201S), came into force on 3 December 1998 (IE9806251N). In line with the Directive, the Act provides for an entitlement to time off from work on grounds of "force majeure" for urgent family reasons in cases of sickness or accident. Some of the issues concerning this force majeure family leave have since been explored in cases taken to the government-run third-party Rights Commissioners' service (which primarily makes recommendations on cases concerning the employment rights of individuals). These issues include the level of advance warning of the family emergency and the special needs of single parents.

Most of the cases brought so far on parental leave concern the family emergency force majeure provisions, rather than the three months of ordinary parental leave. This may be because under the Irish legislation implementing the Directive, the force majeure leave is paid and the ordinary parental leave is unpaid. Opposition by employer bodies at the time the Directive was implemented into Irish law focused particularly on the force majeure provisions.

The Directive allows Member States to specify criteria under which employers should grant force majeure leave. However, as one Rights Commissioner noted in one of the decisions, there are no such rules in the Irish legislation, which meant that he had to apply what he called "a reasonably subjective test" to the circumstances of that particular case. The case concerned a worker who had sought three consecutive days' leave after his wife miscarried her first pregnancy. The employer argued that he was due only one day's leave, but the Rights Commissioner decided that three days should be granted.

Advance notice of a situation can disqualify a worker from the special leave. In one case, a worker had to be present at a clinic with his daughter on a certain day, but the decision went against him because he had known about the appointment in advance. However, in another case, where a worker had to accompany his wife to hospital, the question arose of how much advance notice was needed to disqualify a worker from force majeure leave. In this case, the Rights Commissioner defined an "immediate" need for the worker to be present as a need which arose after work had finished on the day before the day on which the leave was taken. This rule was subsequently applied in several other cases.

In several decisions, mention was made of the fact that the worker was a single parent, and as such had special difficulties in attending to family emergencies. For example, in one case at a tobacco company, where the worker's two-and-a-half year-old daughter had influenza, the Rights Commissioner awarded her an extra day's force majeure leave, noting that "the illness of a small child is obviously of importance to a single parent."