Carer's Leave Act 2001

PART 1 Preliminary and General

1. Short title.

1.—This Act may be cited as the Carer’s Leave Act, 2001.

2. Interpretation.

2.—(1) In this Act, unless the context otherwise requires—

“Act of 1967” means the Redundancy Payments Act, 1967;

“Act of 1977” means the Unfair Dismissals Act, 1977;

“Act of 1993” means the Social Welfare (Consolidation) Act, 1993;

“Act of 2000” means the Social Welfare Act, 2000;

“appeals officer” has the meaning assigned to it by the Act of 1993;

“associated employer” shall be construed in accordance with subsection (2);

“carer’s leave” shall be construed in accordance with section 6;

“confirmation document” has the meaning assigned to it by section 10;

“continuous employment” shall be construed in accordance with section 7(6);

“contract of employment” means—

(a) a contract of service or apprenticeship, and

(b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency, within the meaning of the Employment Agency Act, 1971, and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not that third person is a party to the contract),

whether the contract is express or implied and, if express, whether it is oral or in writing;

“deciding officer” has the meaning assigned to it by the Act of 1993;

“dispute” shall be construed in accordance with section 17;

“employee” means a person of any age, who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Act, a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act, 1956) shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority for the purposes of the F1[Local Government Act 2001(as amended by the Local Government Reform Act 2014)], or of a harbour authority F2[or health board, or a member of staff of an education and training board] shall be deemed to be an employee employed by the authority F2[or board], as the case may be;

“employer” means, in relation to an employee—

(a) the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer, and

(b) includes, where appropriate, the successor of the employer or an associated employer of the employer;

“full-time care and attention” shall be construed in accordance with section 82A (inserted by the Act of 2000) of Chapter 11A of Part II of the Act of 1993;

F3[‘Minister’means the Minister for Justice and Equality;]

“prescribed” means prescribed by regulations made by the Minister under this Act;

“relevant person” has the meaning assigned to it by section 82A(1) (inserted by the Act of 2000) of Chapter 11A of Part II of the Act of 1993;

“successor” has the meaning assigned to it by section 14(1)(a);

“Tribunal” means the Employment Appeals Tribunal.

(2) For the purposes of this Act, 2 employers shall be taken to be associated if one is a body corporate of which the other (whether directly or indirectly) has control or if both are bodies corporate of which a third person (whether directly or indirectly) has control and “associated employer” shall be construed accordingly.

(3) In this Act—

(a) a reference to a Part or section is a reference to a Part or section of this Act, unless it is indicated that a reference to some other enactment is intended,

(b) a reference to a subsection or paragraph is a reference to the subsection or paragraph of the provision in which the reference occurs, unless it is indicated that a reference to some other provision is intended, and

(c) a reference to any enactment shall, unless the context otherwise requires, be construed as a reference to that enactment as amended or adapted by or under any subsequent enactment.

3. Regulations.

3.—(1) The Minister may—

(a) by regulations, provide for any matter referred to in this Act as prescribed or to be prescribed, and

(b) make regulations generally for the purpose of giving effect to this Act.

(2) Before making regulations under this Act, the Minister shall consult with the Minister for Social, Community and Family Affairs, any other Minister of the Government with whom, in his or her opinion, it is appropriate to consult and persons whom the Minister considers to be representative of employers and employees having regard to the regulations so made.

(3) Regulations under this Act may contain such consequential, supplementary and ancillary provisions as the Minister considers necessary or expedient.

(4) Every regulation under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which the House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

4. Voidance or modification of certain provisions in agreements.

4.—(1) A provision in any agreement shall be void in so far as it purports to exclude or limit the application of any provision of this Act or is inconsistent with any provision of this Act.

(2) 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.

(3) Nothing in this Act shall be construed as prohibiting the inclusion in an agreement of a provision more favourable to an employee than any provision in Parts 2 to 5.

(4) References in this section to an agreement are to any agreement, whether a contract of employment or not and whether made before or after the passing of this Act.

5. Expenses.

5.—Any expenses incurred by the Minister in the administration of this Act, shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of monies provided by the Oireachtas.

PART 2 Carer’s Leave

6. Entitlement to carer’s leave.

6.—(1) Subject to this Act, 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 shall be entitled to leave from the employment concerned (to be known and referred to in this Act as “carer’s leave”) for the purpose of providing full-time care and attention to a relevant person for a period not exceeding F4[104 weeks] for each relevant person if—

(a) the person in respect of whom the employee proposes to provide full-time care and attention is a relevant person,

(b) the employee provides the employer concerned with a decision referred to in subsection (5), or, where appropriate, subsection (6),

(c) during the period of carer’s leave the employee provides full-time care and attention to the relevant person, and

(d) during the period of carer’s leave the employee does not engage in employment or self-employment other than employment or self-employment prescribed under section 82B(3) (inserted by the Act of 2000) of Chapter 11A of Part II of the Act of 1993.

(2) An employee shall give the employer a copy of the decision referred to in subsection (1)(b) as soon as he or she receives it and the employee shall not be entitled to carer’s leave until the employer has been given the copy.

(3) An employee shall not be entitled to carer’s leave for the purpose of providing full-time care and attention to a relevant 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 relevant person.

(4) An employee shall, subject to section 7(2), be entitled to a period of carer’s leave for one relevant person at any one time.

(5) 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 the Act of 1993 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 relevant person for the purposes of Chapter 11A (inserted by the Act of 2000) of Part II of the Act of 1993.

(6) A decision of a deciding officer under subsection (5) may be appealed under section 257 of the Act of 1993.

(7) For the avoidance of doubt it is declared that entitlement to carer’s benefit under Chapter 11A (inserted by the Act of 2000) of Part II of the Act of 1993 is not a condition for entitlement to carer’s leave.

7. Supplemental provisions to section 6.

7.—(1) An employee shall, as soon as is practicable, notify his or her employer of any change in circumstances which affect the entitlement to carer’s leave.

(2) Notwithstanding sections 6(4), 8(4) and 9(1) and subject to subsections (4) and (5), an employee may, while on carer’s leave in respect of a relevant person, apply for carer’s leave for another person if that person resides with the relevant person.

(3) An employee who wishes to apply for carer’s leave for another person in the circumstances referred to in subsection (2) shall apply for carer’s leave under section 6.

(4) Where an application referred to in subsection (3) is made and an employee who is on carer’s leave in respect of a relevant person takes carer’s leave in respect of a second relevant person—

(a) the period of carer’s leave for the first-mentioned relevant person shall not exceed F5[104 weeks] from its commencement, and

(b) the period of carer’s leave for the second-mentioned relevant person shall commence on the date of the decision under section 6(5) or section 6(6) and shall not exceed F5[104 weeks] from its commencement,

and the total amount of weeks for such carer’s leave shall not exceed F5[208 weeks].

(5) An employee who is on carer’s leave in respect of a relevant person and who takes carer’s leave in respect of a second relevant person shall not make another application for carer’s leave in the circumstances referred to in subsection (2).

(6) The First Schedule to the Minimum Notice and Terms of Employment Act, 1973, shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.

(7) Regulations made under section 82B(3) (inserted by the Act of 2000) of Chapter 11A of Part II of the Act of 1993 shall apply to this Act with any necessary modifications.

8. Manner in which carer’s leave may be taken.

8.—(1) The period of carer’s leave from employment to which an employee is entitled shall not exceed F6[104 weeks] for each relevant person and may, subject to subsections (2) and (3) and any regulations made under subsection (6), be taken in the form of—

(a) one continuous period of F6[104 weeks] for each relevant person, or

(b) a number of periods, the aggregate duration of which does not exceed a total of F6[104 weeks] from the date of the commencement of the carer’s leave.

(2) 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.

(3) An employee who has taken a period of carer’s leave in accordance with subsection (1)(b) in respect of a relevant person, shall not be entitled to commence a further period of carer’s leave in respect of the same relevant person, until a period of 6 weeks has elapsed since the termination of the previous period of carer’s leave.

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

(5) Nothing in this Act shall be construed as prohibiting 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 under this Act.

(6) The Minister may make regulations in respect of the form in which carer’s leave may be taken by any specified class or classes of employees in circumstances where carer’s leave is to be taken in the form referred to in subsection (1)(b).

9. Notice of carer’s leave.

9.—(1) When an employee proposes to take carer’s leave, the employee shall, not later than 6 weeks before the proposed commencement of the carer’s leave, provide the employer with a notice in writing stating—

(a) the proposal to take the carer’s leave,

(b) that an application referred to in section 6(5) or, where appropriate, section 6(6), has been made, and

(c) the proposed date of commencement of the carer’s leave and the form in which it is proposed to be taken.

(2) Where, in exceptional or emergency circumstances, it is not reasonably practicable to give notice in accordance with the period specified in subsection (1) the employee shall give that notice as soon as is reasonably practicable.

(3) An employee may revoke a notice of the proposal to take carer’s leave given to the employer in accordance with subsection (1) or, where appropriate, subsection (2), by notice in writing given to the employer before the date of the confirmation document and where the notice of the proposal to take carer’s leave is so revoked the employee shall not be entitled to take carer’s leave at the time specified in the notice given in accordance with subsection (1) or, where appropriate, subsection (2).

(4) Notwithstanding subsection (1) 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 subsection (1) or (2), the employer may, at his or her discretion and subject to subsection (8), treat that leave as carer’s leave and this Act shall apply to that leave accordingly.

(5) An employer shall retain the documents given to him or her in accordance with subsection (1).

(6) 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.

(7) Subsection (6) shall not apply if the period of carer’s leave is terminated in accordance with section 11(2).

(8) An employer may, when exercising his or her discretion under subsection (4), 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.

10. Confirmation of carer’s leave.

10.—(1) Where an employee has given his or her employer the decision referred to in section 6(1)(b), 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 document (referred to in this Act as 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.

(2) Subsection (1) shall apply to the taking of carer’s leave in accordance with section 9(4) and the employee and the employer shall prepare and sign the confirmation document as soon as may be.

(3) 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.

(4) A confirmation document, including any amendments to it made under section 12(1), shall be a notice for the purposes of section 31.

11. Termination of carer’s leave.

11.—(1) The period of carer’s leave shall terminate—

(a) on the date of termination of the period of carer’s leave specified in the confirmation document,

(b) on a date agreed between the employee and employer concerned,

(c) where the person in respect of whom the employee has taken carer’s leave ceases to satisfy the conditions for a relevant person for the purposes of the Act,

(d) where the employee ceases to satisfy the conditions for the provision of full-time care and attention for the purposes of the Act,

(e) where a decision under subsection (2) is made, on the date specified in subsection (3), and

(f) where the relevant person dies during a period of carer’s leave on the date earliest of the following dates—

(i) the date that is 6 weeks after the date of death, or

(ii) the date of termination of the period specified in the confirmation document.

(2) Where a deciding officer or an appeals officer makes a decision under section 18(4) or section 18(5) that—

(a) 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 relevant person,

(b) the employee does not satisfy the conditions for providing full-time care and attention, or

(c) the employee is engaging or has engaged in employment or self-employment other than as prescribed under section 82B(3) (inserted by the Act of 2000) of Chapter 11A of Part II of the Act of 1993,

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.