Force majeure leave: What you need to know

Alan Hickey

September 03 2019

With so many working parents in the Irish workforce, your chances of receiving an employee request for force majeure leave are high. Almost inevitable in fact.

Here, we set out some key points to help you handle a request for force majeure leave.

What is force majeure leave?

Force majeure leave is a statutory employee entitlement to paid time off work for certain urgent family reasons.

Because force majeure is a legal right provided to employees under the Parental Leave Acts, 1998-2019, your employees will either be entitled to exercise their rights under the law or they will not.

In other words, certain events will justify leave, events employers and employees don’t have any real discretion over.

Only certain family members will entitle the employee to take force majeure leave

The Parental Leave Acts, 1998-2019 specify that an employee is only entitled to take force majeure leave to care for the following persons:

  • A child or adoptive child of the employee.
  • The spouse of the employee, or a person with whom the employee is living with as husband or wife.
  • A person to whom the employee is in loco parentis.
  • A brother or sister of the employee.
  • A parent or grandparent of the employee.
  • Persons in a relationship of domestic dependency, including same-sex partners.

When will an employee be entitled to take force majeure leave?

Your employees will be entitled when:

  1. Urgent family reasons arise.
  2. A close relative suffers an injury or illness.
  3. A close relative requires the immediate presence of the employee.
  4. The employee’s presence is indispensable.

All four requirements must be satisfied. In particular, given that the employee’s presence must be “urgent”, “immediate” and “indispensable”, an employee generally cannot take force majeure leave for something they knew about in advance.

Furthermore, it is unlikely that an employee will be in a position to take consecutive force majeure days. This is because the “immediate” element is difficult to satisfy over multiple days and more often than not, it will only apply to one day.

However, the Labour Court did conclude in Thermo King Europe v. Nolan that an employee was entitled to force majeure leave for two consecutive days, but that in the circumstances she was not entitled to such leave for the third day.

Are employees obliged to explain the reason for taking force majeure leave?

When leave is taken, an employee is required by the Parental Leave Acts to provide their employer with details as to when and why they took such leave. This information must be provided as soon as reasonably practicable after the leave has concluded.

The information the employee must provide is set out in a statutory form (S.I. No. 454 of 1998).

Key case law

The courts have taken a clear line on force majeure requests, which is important for employers to note.

A request for force majeure leave will always be assessed from the employee’s perspective. Carroll J. in Carey v. Penn Racquet Sports Ltd pointed out that the “urgent and indispensable” requirement should not be judged with hindsight.

The case involved a single mother who stayed home to care for her child who developed a rash on her legs. It later emerged that the illness was just a benign skin rash and nothing more serious.

The employer pleaded that this was not an urgent and serious case and that the employee had no entitlement to force majeure leave.

The court rejected the employer’s argument and found that there was no way for the employee to know the gravity of the illness from the outset.

This means that you, the employer, must consider force majeure situations from your employee’s point of view.

In Murphy v. Celtic Linen Ltd the Employment Appeals Tribunal (EAT) reached a similar conclusion.  

The EAT held that the parent should decide whether his or her immediate presence is indispensable. The employer, in that case, likewise unsuccessfully argued that the employee’s absence was due to a routine illness.

Force majeure limitations

As the courts will defend the right of employees to request force majeure leave, you should note the restrictions on how often requests can be made.

Employees are only entitled to take three days in a consecutive 12 month period. Or, they may take five days in a consecutive 36 month period.

Need our help?

If you would like further complimentary advice on force majeure from an expert, our advisors are ready to take your call any time day or night. Call us on 1890 252 923 or request a callback here.

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