Employment Case Law – Force Majeure Leave
The Parental Leave Acts, 1998-2013 sets out Employee entitlements to paid leave where, due to the illness or injury of a named list of people, their presence is indispensable at the location of that person.
Force majeure leave may be taken in respect of the illness or injury of one the following persons:
There is no service requirement for an Employee wishing to avail of force majeure leave. However, in order for a situation to warrant the granting of force majeure leave it must meet the following criteria:
Case 1 – Due Consideration (Employer versus Employee PL2/2010)
This case relates to an appeal against the decision of a Rights Commissioner under the Parental Leave Acts.
The Employee applied for two days’ force majeure leave for his absence due to the illness of his partner. The Employer argued that the Employee had ample time and opportunity to make alternative arrangements to arrange for care, or request an alternative form of leave. It was contended that the illness was not unforeseen or sudden, and did not constitute “urgent family reasons”. The Employee’s case was that his partner deteriorated significantly over the weekend, and he had no alternative but to stay with her.
The Rights Commissioner found in favour of the Employee, and the Employer appealed to the Employment Appeals Tribunal. The Tribunal upheld the decision of the Rights Commissioner whereby the Employee was granted 2 days force majeure leave.
This case highlights to Organisations that due consideration must be given to Employees’ requests for force majeure leave in light of the circumstances at the given time.
Case 2 – Importance of having all relevant information (Murphy versus Celtic Linen Ltd. PL1/2003)
This case relates to an appeal against the decision of a Rights Commissioner under the Parental Leave Act.
In January 2002, the Claimant’s 22-month-old child became ill with an ear, throat and chest infection. She brought the child to the doctor, who prescribed antibiotics and told the Claimant that it might be 48 hours before an improvement would be evident. The child’s health deteriorated further and the Claimant became distressed. The child was ill for the following two days and the Claimant said she had to remain at home as the young child was ‘clingy’ and would not stay with anyone else. Her application for two days’ force majeure leave was refused.
The Employer considered this absence to be a ‘routine absence’ and felt that it was a parent’s responsibility to have alternative arrangements in place for situations like this. The Company believed that the leave taken by the Claimant was not covered by the Parental Leave Act, 1998. The Company also noted that the Claimant had made four previous applications for force majeure leave and only one application had been refused.
The Tribunal referred to section 13 of the act, which outlined the purpose and criteria for force majeure leave, and subsection (2), which outlined the family members covered by the act. The Tribunal was aware of the Employee’s numerous requests for force majeure leave each year and, while most were granted, the Employer was found to be relying on second-hand information to make its decision.
The Tribunal was of the opinion that the Claimant was entitled to two working days force majeure leave.
This case highlights to Organisations the importance of having all of the relevant information in relation to an application of force majeure leave in order to make a decision as to whether to grant this leave or not. Organisations cannot presume anything and must be fair and transparent in its decision making.
Force majeure leave may be taken in respect of the illness or injury of one the following persons:
- A child or adoptive child of an Employee
- A spouse or partner of an Employee
- A person to whom the Employee is acting in loco parentis
- A brother or sister of an Employee
- A parent or grandparent of an Employee, or
- A person with whom the Employee lives in a relationship of domestic dependency. This includes any person who resides with an Employee who, in the event of their injury or illness, would reasonably rely on that Employee to make arrangements for the provision of care. This includes, but is not limited to same sex partners.
There is no service requirement for an Employee wishing to avail of force majeure leave. However, in order for a situation to warrant the granting of force majeure leave it must meet the following criteria:
- The presence of the Employee at the place where the ill or injured person is situated must be deemed indispensable.
- The requirement to take leave must be urgent and immediate. An Employee should not generally be in a position to plan the leave, therefore it should not be used for events such as bringing a child to a pre-scheduled doctor’s appointment.
Case 1 – Due Consideration (Employer versus Employee PL2/2010)
This case relates to an appeal against the decision of a Rights Commissioner under the Parental Leave Acts.
The Employee applied for two days’ force majeure leave for his absence due to the illness of his partner. The Employer argued that the Employee had ample time and opportunity to make alternative arrangements to arrange for care, or request an alternative form of leave. It was contended that the illness was not unforeseen or sudden, and did not constitute “urgent family reasons”. The Employee’s case was that his partner deteriorated significantly over the weekend, and he had no alternative but to stay with her.
The Rights Commissioner found in favour of the Employee, and the Employer appealed to the Employment Appeals Tribunal. The Tribunal upheld the decision of the Rights Commissioner whereby the Employee was granted 2 days force majeure leave.
This case highlights to Organisations that due consideration must be given to Employees’ requests for force majeure leave in light of the circumstances at the given time.
Case 2 – Importance of having all relevant information (Murphy versus Celtic Linen Ltd. PL1/2003)
This case relates to an appeal against the decision of a Rights Commissioner under the Parental Leave Act.
In January 2002, the Claimant’s 22-month-old child became ill with an ear, throat and chest infection. She brought the child to the doctor, who prescribed antibiotics and told the Claimant that it might be 48 hours before an improvement would be evident. The child’s health deteriorated further and the Claimant became distressed. The child was ill for the following two days and the Claimant said she had to remain at home as the young child was ‘clingy’ and would not stay with anyone else. Her application for two days’ force majeure leave was refused.
The Employer considered this absence to be a ‘routine absence’ and felt that it was a parent’s responsibility to have alternative arrangements in place for situations like this. The Company believed that the leave taken by the Claimant was not covered by the Parental Leave Act, 1998. The Company also noted that the Claimant had made four previous applications for force majeure leave and only one application had been refused.
The Tribunal referred to section 13 of the act, which outlined the purpose and criteria for force majeure leave, and subsection (2), which outlined the family members covered by the act. The Tribunal was aware of the Employee’s numerous requests for force majeure leave each year and, while most were granted, the Employer was found to be relying on second-hand information to make its decision.
The Tribunal was of the opinion that the Claimant was entitled to two working days force majeure leave.
This case highlights to Organisations the importance of having all of the relevant information in relation to an application of force majeure leave in order to make a decision as to whether to grant this leave or not. Organisations cannot presume anything and must be fair and transparent in its decision making.
