James Cox
While the new Work Life Balance Bill is positive in principle, it is littered with uncertainties and issues that could make it a "nightmare" for employers and employees, according to an employment law solicitor.
There are three key points in the Work Life Balance and Miscellaneous Provisions Bill; giving parents and carers of children under 12 the right to request flexible work, five days unpaid leave for medical care reasons and the extension of the period of calculable breastfeeding breaks for women who are back at work.
Employment law solicitor Richard Grogan told BreakingNews.ie there will be a range of contentious issues surrounding the flexible working and five days unpaid leave areas of the bill.
Small businesses and SMEs will be disproportionately affected by this, he said.
The five days unpaid leave is for a "significant medical issue", a term which is too vague according to Mr Grogan.
"Someone now gets an unpaid day off and the cert will cost €50. Then there's the point of is it a serious medical condition or not?
"Take a child who is four or five years of age, they wake up with a temperature of 102, is that a serious medical issue? If a parent has a child with a temperature of 102 they will regard it as a serious issue, but will a doctor?
"This will bring issues around getting medical certification, GDPR issues, a doctor will have to set out what is wrong with a child or family member, that will have to be sent to an employer. It won't just be the child is sick, it will be a question of what's wrong with the child?"
Mr Grogan also said there could be issues for parents or carers who seek to take more than five days of unpaid leave.
Doctor's certificate
"The majority of employers, if someone phones in and says they have a sick child, they will say 'right we'll struggle through, hope the child feels better soon, I'll put it down as one of your five unpaid days I don't need to see a certificate'.
"If this is going to be a calendar year, this happens in January, February, then another incident where the child wasn't well in March followed by two days in June.
"Later in the year if there's something serious and the employer says 'you've used your five days'. Then can the employee say, 'there wasn't much wrong then, this is a serious condition, so I should get five more days'.
'But you asked for them?', the employer will say. The employee could argue: 'I said the child had a temperature I didn't say it was serious, I was thinking of it as an unpaid day, not the five I was entitled to'.
"The vast majority of employers will be reasonable, but some will not be."
"We've had a reasonable approach from most employers, we're now going to end up with a legalistic approach," he added.
Mr Grogan said that the legislation has not been thought through to the extent it requires.
"This will have to be worked through, you get Government ministers announcing things looking at it from the ivory tower of the public service, rather than sitting down with employment lawyers who will be aware of where the issues will come.
"We're the last they bring in, but we're the people who will fight these cases."
Mr Grogan also argued it has not been made clear that there will be a significant proportion of the population who will never be eligible for flexible businesses.
As well as small businesses, he said it would be impossible for people working in the likes of healthcare, An Garda Síochána, and the court services.
"It can be dealt with in a larger organisation, but smaller organisations will struggle," he said.
"Someone working in a coffee shop for example, their busy time is 7.30am-10am, if someone says I need flexible working, the employer can say 'I'm going to have to get someone to work two and a half hours every day?' Nobody will agree to that.
"It goes up to the time the child is 12, so they can return to their job, and the other person is out of a job? That will be one big issue.
"That applies to hotels, restaurants, shops and the SME sector. So if someone has refused it they have to give six months 'notice, the employer can say no and there's a 12-month backlog in the Workplace Relations Commission (WRC), what happens in the meantime?"
Mr Grogan is also concerned that cases coming before the WRC will be difficult because they are not equipped to dictate the ideal operation of individual businesses.
"The next issue is you're now going down to the WRC, which is trained for dealing with employment rights, not the running of different small businesses.
"That's a whole new skill set they will need. An adjudication officer at the WRC can deal with whether someone got their breaks, unfair dismissal, equality claims, there is legislation, now you're going to be turning around and re-writing people's contracts.
"They will have to decide if an employer can say, I do need you at 9am?
"This flexible working is not just for coming in and finishing early, it's going to be 'I need Monday and Tuesday off'. You're now into the running of different businesses, that's a whole new area.
"This is where they will need a whole raft of adjudication officers with experience in the area of running businesses."
Mr Grogan reiterated his belief that the bill is very worthwhile, however, he fears it will bring up litigation issues in its current form.
"There's also a huge group of people who will never get this.
"Doctors, nurses, ambulance drivers. How do you cover people in these professions having two days off during the week?
Complexity
"The real problem with Irish legislation, particularly employment, is that it's announced without sitting down and working out the practical issues for those who will be at the coalface dealing with it?
"Ictu and Ibec will be brought in for the pre-legislative process, but nobody will bring the lawyers in to ask how will this be determined, how will the WRC have this skill set? I'm an employment law solicitor, what do I know about running a coffee shop.
"This brings a huge level of complexity to how it will be operated. What concerns me is these things are announced, and it's presumed everyone will be entitled to flexible working, there's a whole group of people who will never get it.
"My experience is when employment legislation in Ireland is introduced, then the problems arise, then the litigation and the cost of the litigation arises.
"It's a piece of legislation I think is very worthwhile, it's being announced piecemeal, but we're not getting where the exemptions and exceptions will be. What concerns me as an employment law solicitor is we're going to be going down fighting how a business operates.
"It's all last minute stuff, in principle it's very good but how it's going to operate in practice has the potential to be a complete and utter nightmare for employers and employees, and an expensive nightmare."
