Carers’ Leave

Overview of Carer’s Leave

Carers leave is governed by the Carer’s Leave Act 2001 as amended in 2006. Carers leave may be available to an employee with over 12 months’ service.  Up to 104 weeks’ carers leave may be taken to look after an ill or incapacitated person, while preserving a right to return to work.

A person may take carers leave to provide full-time care to certain connected persons.  Full-time care and attention must be required. The person cared for must require continuous supervision and frequent attendance during the day in connection with normal bodily functions or in order to avoid dangers.  The extent of the disability of the person concerned must be certified by a medical practitioner.

The employee must have at least one year’s continuous service.  Leave may be taken as a single block or in a number of blocks up to 104 weeks in total. An employer may refuse carer’s leave on reasonable grounds, for proposed periods up to 13 weeks.

The employee must usually wait for 6 months between the expiry of one period of leave and the commencement of another. There are exceptions. Two employees cannot take carer’s leave in respect of the one person’s personal care.

The Act does not prohibit an agreement between an employer and employee in respect of carer’s leave on terms which are more favourable to the employee than the entitlements of the employee.


Initiation of Leave

The employee must notify the employer of his intention to take carers leave. He must specify the date of commencement and duration of the carers leave. At least six weeks’ notice in writing must be given of the intention to take the leave or a proposed block of leave.  It must be given in writing unless there are exceptional circumstances by reason of which, this is not practicable.

An employer may refuse on reasonable grounds a period of leave that is less than 13 weeks. The employer may exercise a discretion to refuse leave. It must specify the grounds of refusals in writing if he does so.

The employer is to confirm consent to the carer’s leave by way of written confirmation within two weeks before the leave is to commence. There are provisions for variation and postponement of the leave period. There are provisions for curtailment.

An application for the Social Welfare payment should be made to the Department of Social and Family affairs to take the leave. If there are changes to the arrangements, they should be notified to the employer and the Department.


During Leave

Carer’s leave is unpaid, in the absence of a contractual entitlement. The employee’s basic rights are protected including those relating to dismissal etc. during carers leave.  The terms and conditions of employment are preserved, except for remuneration. Annual and public holidays accrue for up to 13 weeks.

An employee may be entitled to social welfare payments subject to qualifying conditions. He must generally have at least three years’ contributions and a certain number of contributions within a relatively recent period, 39 weeks in the last 12 months.

The carers leave lasts as long as specified in the confirmation. It may end prematurely if the person cared for dies or if the conditions are not fulfilled. There is a right to return to work to the same job to a suitable alternative. The right to return is broadly similar to that for other types of protective leave.


Disputes regarding Carers Leave

There is provision for dispute resolution in relation to the entitlement to carer’s leave.  The matter of entitlement or continued entitlement may be referred to the Minister for Social Protection by the employer, where the employer believes the requisite conditions are not satisfied.

The issue may also affect entitlement to a payment under the Social Welfare Acts. The matter is referred to a deciding officer. Where the entitlement to the payment is terminated, it notifies the employer.

A dispute may be referred by the employer to the WRC (formerly a Rights Commissioner) within six months. It may award compensation and / or award the leave.

Records must be kept. The failure to keep records or the obstruction of an investigation are offences.


Voidance of Provisions

A provision in any agreement is void in so far as it purports to exclude or limit the application of any provision of the Carers Leave Act or is inconsistent with any provision in it.

A provision in any agreement which is or becomes less favourable in relation to an employee than a similar or corresponding entitlement conferred on the employee by this Act shall be deemed to be so modified as to be not less favourable. A provision which is more favourable to an employee than those provided is permitted.


Entitlement to Carers Leave I

An employee who has been employed for a period of 12 months’ continuous employment by the employer from whose employment the carer’s leave is proposed to be taken is entitled to leave from the employment concerned for the purpose of providing full-time care and attention to a qualifying person for a period not exceeding 104 weeks for each qualifying person provided that

  • the person in respect of whom the employee proposes to provide full-time care and attention is a qualifying person;
  • the employee provides the employer concerned with the below decision;
  • during the period of carer’s leave the employee provides full-time care and attention to the qualifying person, and
  • during the period of carer’s leave, the employee does not engage in employment or self-employment other than employment or self-employment prescribed for that purpose.

Entitlement to Carers Leave II

An employee who proposes to avail of carer’s leave shall apply to the Minister for Social, Community and Family Affairs for a decision by a deciding officer under that the person in respect of whom the employee proposes to avail of carer’s leave in order to provide full-time care, and attention is a qualifying person for the purposes of the legislation.

An employee shall give the employer a copy of the Department’s decision as soon as he or she receives it. The employee shall not be entitled to carer’s leave until the employer has been given the copy. A decision of a deciding officer under the Social Welfare Acts for this purpose may be appealed. The entitlement to carer’s benefit is not a condition for entitlement to carer’s leave.

An employee shall, as soon as is practicable, notify his employer of any change in circumstances which affect the entitlement to carer’s leave.


Multiple Leave

An employee is not entitled to carer’s leave for the purpose of providing full-time care and attention to a qualifying person during the same period in which another employee is absent from employment on carer’s leave for the purpose of providing full-time care and attention to the same qualifying person.

An employee is entitled to a period of carer’s leave for one qualifying person at any one time. An employee may, while on carer’s leave in respect of a qualifying person, apply for carer’s leave for another person if that person resides with the qualifying person.

Where an employee who is on carer’s leave in respect of a qualifying person takes carer’s leave in respect of a second person the period of carer’s leave for the first person shall not exceed 104 weeks from its commencement, and the period of carer’s leave for the second person shall commence on the date of the decision and shall not exceed 104 weeks from its commencement, and the total number of weeks for such carer’s leave shall not exceed 208 weeks.

An employee who is on carer’s leave in respect of a qualifying person and who takes carer’s leave in respect of a second qualifying person shall not make another application for carer’s leave in respect of a qualifying person who resides with him.


Period of Carers Leave

The period of carer’s leave from employment to which an employee is entitled shall not exceed 104 weeks for each qualifying person and may, subject to other provision and any regulations, be taken in the form of one continuous period of 104 weeks for each qualifying person, or a number of periods, the aggregate duration of which does not exceed a total of 104 weeks from the date of the commencement of the carer’s leave.

An employer may refuse, on reasonable grounds, to permit an employee to take a period of carer’s leave which is less than 13 weeks’ duration and where the employer so refuses he or she shall specify in writing to the employee the grounds for such refusal.

An employee who has taken a period of carer’s leave in respect of a qualifying person, shall not be entitled to commence a further period of carer’s leave in respect of the same qualifying person until a period of 6 weeks has elapsed since the termination of the previous period of carer’s leave.

Where an employee has taken carer’s leave in respect of a qualifying person and that period of carer’s leave has terminated the employee shall not commence carer’s leave in respect of another qualifying person until a period of 6 weeks has elapsed since the termination of the previous period of carer’s leave.


Notice to Employer I

When an employee proposes to take carer’s leave, the employee must not later than 6 weeks before the proposed commencement of the carer’s leave, provide the employer with a notice in writing stating the proposal to take the carer’s leave, that an application to the Department has been made, and the proposed date of commencement of the carer’s leave and the form in which it is proposed to be taken.

Where, in exceptional or emergency circumstances, it is not reasonably practicable to give notice in accordance with the period specified, an employee shall give that notice as soon as is reasonably practicable.

An employee may revoke a notice of the proposal to take carer’s leave given to the employer by notice in writing given to the employer before the date of the confirmation document. Where notice of the proposal to take carer’s leave is revoked the employee shall not be entitled to take carer’s leave at the time specified in the notice given.


Notice to Employer II

Where leave, purporting to be carer’s leave, is taken by an employee who is entitled to carer’s leave but who has not complied with the notice requirements, the employer may, at his or her discretion, treat that leave as carer’s leave.

An employer shall retain the documents given to him or her in accordance with the legislation.

An employee who is on carer’s leave shall, not less than 4 weeks before the date on which that employee is due to return to his or her employment, give notice in writing to the employer of the intention to return to work. This does not apply if the period of carer’s leave is terminated.


Confirmation /Refusal

An employer may, when exercising his or her discretion, refuse to treat leave as carer’s leave on reasonable grounds and where the employer so refuses he or she shall specify in writing the grounds for such refusal.

Where an employee has given his or her employer its decision, the employee and the employer shall, on a date that is not less than 2 weeks before the proposed commencement of the carer’s leave concerned, prepare and sign a confirmation document specifying the date of the commencement of the carer’s leave, its duration and the form in which it will be taken.

An employer shall retain a confirmation document signed by him or her and shall give a copy of it to the employee concerned who shall retain it.


Termination of Leave I

The period of carer’s leave shall terminate

  • on the date of termination of the period of carer’s leave specified in the confirmation document;
  • on a date agreed between the employee and employer concerned;
  • where the person in respect of whom the employee has taken carer’s leave ceases to satisfy the conditions for a qualifying person
  • where the employee ceases to satisfy the conditions for the provision of full-time are and attention;
  • where a decision to terminate is made below; or
  • where the qualifying person dies during a period of carer’s leave on the date that is 6 weeks after the date of death, or the date of termination of the period specified in the confirmation document.

Where a deciding officer or an appeals officer makes a decision that—

  • the person in respect of whom an employee proposed to take or has taken carer’s leave did not or does not satisfy or no longer satisfies the requirements for a qualifying person;
  • the employee does not satisfy the conditions for providing full-time care and attention; or
  • the employee is engaging or has engaged in employment or self-employment other than as prescribed

the period of carer’s leave shall terminate, and the deciding officer or the appeals officer shall, as soon as practicable, notify the employer and the employee of that decision.


Termination of Leave II

The employer, following a notification from the Department, shall, as soon as practicable, give the employee a notice in writing specifying the date on which the employee is to return to his or her employment and that date shall be a date that is reasonable and practicable having regard to all the circumstances. The employee concerned shall return to his or her employment on the day specified in the notice and any period between the date of the return to the employment.

An employer shall, when the employee returns to his employment, give notice in writing to the Minister for Social, Community and Family Affairs that the period of carer’s leave has terminated, the employee has returned to work and the date of the return to employment. A person shall retain a notice under this section given to him or her and a copy of a notice under this section given by him or her.


Postponement

If, after the date of the confirmation document (whether or not the period of carer’s leave to which it relates has commenced) the employer and the employee so agree

  • the carer’s leave or part of it may be postponed to such time as may be so agreed between the parties,
  • the period of carer’s leave may be curtailed in a manner and to an extent as may be so agreed between the parties, or
  • the form of the carer’s leave may be varied in a manner as may be so agreed between the parties, and
  • the confirmation document shall be amended in accordance with such agreement.

Where carer’s leave is postponed, curtailed or varied the period of carer’s leave that is not taken by reason of such postponement, curtailment or variation may, subject to conditions, be taken at another time.


Preservation of Rights I

An employee who is absent from work on carer’s leave is deemed as still working in the employment for all purposes relating to his or her employment. None of his rights or obligations related to the employment shall be affected by availing of carer’s leave other than the right to—

  • remuneration,
  • annual leave, except as provided,
  • public holidays, except as provided, and
  • superannuation benefits.

Any obligation to pay social insurance contributions in, or in respect of, the employment, apply to the first 13 weeks of absence from work on carer’s leave for each qualifying person.

Annual leave rights apply to the first 13 weeks of absence from work on carer’s leave for each qualifying person.


Preservation of Rights II

Absence from employment while on carer’s leave is not treated as part of any other leave from the employment (including sick leave, annual leave, adoptive leave, maternity leave, parental leave and force majeure leave) to which the employee concerned is entitled.

Where an employee who is on probation in employment or is undergoing training in relation to that employment or is employed under a contract of apprenticeship takes carer’s leave, and his employer considers that the employee’s absence from employment while on carer’s leave would not be consistent with the continuance of the probation, training or apprenticeship, the employer may require that the probation, training or apprenticeship be suspended during the period of the carer’s leave and be completed by the employee at the end of that period.


Return to Work

On the termination of carer’s leave in accordance with the legislation, the employee concerned is entitled to return to work—

  • with the employer with whom he or she was working immediately before the start of the period or, where during the employee’s absence from work there was or were a change or changes of ownership of the     undertaking in which the employee was employed immediately before the absence, the owner on the expiration of the period;
  • in the job that the employee held immediately before the commencement of the period, and
  • under the contract of employment in respect of which the employee was employed immediately before the commencement of the period, or
  • where a change of ownership has occurred, under a contract of employment with the successor, that is identical to the contract under which the employee was employed immediately before such commencement and
  • (in either case) under terms or conditions not less favourable to the employee than those that would have been applicable to him or her if he or she had not been so absent from work.

The job held by an employee immediately before the commencement of a period of carer’s leave to which he or she is entitled was not the employee’s normal or usual job, the employee shall be entitled to return to work, either in that job or in his or her normal or usual job as soon as is practicable without contravention by the employee or the employer of any provision of a statute or provision made under statute.

Where, because of an interruption or cessation of work at an employee’s place of employment that exists at the time of the expiration of a period of carer’s leave taken by the employee, it is unreasonable to expect the employee to return to work on such expiration, the employee may return to work instead when work resumes at the place of employment after the interruption or cessation, or as soon as reasonably practicable after such resumption.


Suitable Alternative

Where an employee is entitled to return to work above but it is not reasonably practicable for the employer to permit the employee to return to work in accordance with that provision, the employee is entitled to be offered by his or her employer suitable alternative employment under a new contract of employment.

Work under a new contract of employment constitutes suitable alternative work for the purposes of this Act if

  • it is of a kind that is suitable in relation to the employee concerned and appropriate for the employee to do in the circumstances.
  • the terms or conditions of the contract relating to the place where the work under it is required to be done, the capacity in which the employee concerned is to be employed and any other terms or conditions of   employment are not substantially less favourable to the employee than those of his or her contract of employment immediately before the commencement of the period of absence from work while on carer’s       leave, and
  • the continuity of service is preserved.

No Penalisation

An employer shall not penalise an employee for proposing to exercise or having exercised his or her entitlement to carer’s leave.  Penalisation of an employee includes—

  • dismissal of the employee.
  • unfair treatment of the employee, including selection for redundancy, and
  • an unfavourable change in the conditions of employment of the employee.

If a penalisation of an employee, constitutes a dismissal of the employee, the employee may institute proceedings under the Unfair Dismissals Acts, in respect of such dismissal. An employee who is entitled to return to work in the employment concerned but is not permitted by his or her employer to do so

  • is deemed to have been dismissed on the date on which he or she was entitled to so return to work; the dismissal is deemed, for the purposes of the Unfair Dismissals Acts, to have been an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal, and
  • is deemed for the purposes of the Redundancy Payments Acts, to have had his or her contract of employment with his or her employer terminated on the date aforesaid.

References and Sources

Primary References

Employment Law  Meenan  2014 Ch.13

Employment Law Supplement Meenan 2016

Employment Law Regan & Murphy  2009 ( 2nd Ed 2017) Ch.11

Employment Law in Ireland Cox & Ryan 2009 Ch.13

Other Irish Books

Employment Law Forde & Byrne 2009

Principles of Irish Employment Law         Daly & Doherty   2010

Employment Law Contracts (Book & CD-ROM)        Beauchamps, Solicitors          2011

Periodicals and Reports

Employment Law Yearbook (annual) Arthur Cox

Employment Law Reports

Irish Employment Law Journal

Employment Law Review

Websites

Workplace Relations Commission http://www.lrc.ie/en/

Irish Human Rights and Equality Commission https://www.ihrec.ie/

Health and Safety Authority http://www.hsa.ie/eng/

The Employment Law Review 8th  Ed.   Erika C. Collins 2017

Industrial Relations Law Reports

Employment Law in Context: Text and Materials 2nd  Ed. David Cabrelli 2016