Force majeure leave arises “where for urgent family reasons owing to an injury or illness of a specified person, the immediate presence of the employee at the place where the person is, whether at his home or elsewhere, is indispensable.” (s.13 Parental Leave Act 1998 as amended by the Parental Leave (Amendment) Act 2006).
The person who is sick or injured can be a grandparent, parent or adoptive parent, sibling, spouse (or equivalent), child or person to whom the employee is in loco parentis and persons of such other class as may be prescribed.
Force majeure leave is typically sought due to sudden and unforeseen circumstances which preclude employees from informing their employer of the reason for their absence. Employees must nonetheless provide notice as soon as is practicable.
The courts have determined in a number of cases that the circumstances which lead to a request for force majeure leave will be viewed from the employee perspective. Carroll J. in Carey v. Penn Racquet Sports Ltd. [2001] 3 I.R. 32 pointed out that the “urgent and indispensable” requirement should not be judged with hindsight.
In that case, a single mother stayed home to tend to her child who was experiencing a rash on her legs. It was later established that the illness was just a rash and nothing more serious. The employer argued that this was not an urgent and serious case and so there was no entitlement to force majeure leave.
Rejecting the employer’s argument, the court found that there was no way for the employee to know the gravity of the illness. The employer must regard the situation from the employee’s point of view.
In Murphy v. Celtic Linen Ltd. (PL/1/2003) it was held by the Employment Appeals Tribunal that in the final analysis, it is for the parent to decide as to whether his or her immediate presence is indispensable. The employer, in that case, had similarly contended that the absence was due to a routine illness.
As the courts will defend the right of employees to request force majeure leave it is therefore important for employers to note the restrictions on how often requests for force majeure leave can be made. Employees are only entitled to 3 days in a consecutive 12 month period or 5 days in a consecutive 36 month period.
If you have any questions regarding force majeure leave, please don’t hesitate to contact our 24 Hour Advice Service on 0818 923 923
