The recent case of Dean Hart v Komfort Kare (ADJ00051923) considers the circumstances under which a request for time off, by an employee, for force majeure leave from their employer, must be given due consideration.

In this case the Complainant brought a complaint claiming that his employer denied him the right to take force majeure despite extenuating circumstances.

The Complainant had informed his employer that his wife had miscarried, and, on that basis, he was granted a day off per the company force majeure policy but was refused an additional day of force majeure leave, despite his wife remaining unwell and continuing to bleed, and being unable to look after their 3-year-old child.

The Respondent replied to his request as follows:

“Please note ‘Force Majeure means urgent family reasons where, owing to an injury or to the illness of an immediate relative the presence in the same place is indispensable. As a gesture of good will, the company will take your application into consideration if you furnish us with a letter from the maternity hospital which supports the issues you have outlined, including care instructions and support required, appointment dates. I look forward to hearing from you.”

The Complainant responded outlining the sequence of events stating there was ongoing requirement for him to be at home and then submitted a sick certificate the next day and he remained on sick leave since then.

Section 13(1) of the Parental Leave Act, 1998, as amended, sets out:

13.—(1) An employee shall be entitled to leave with pay from his or her employment, to be known and referred to in this Act as “force majeure leave”, where, for urgent family reasons, owing to an injury to or the illness of a person specified in subsection (2), the immediate presence of the employee at the place where the person is, whether at his or her home or elsewhere, is indispensable.

(2) The persons referred to in subsection (1) are—

(a) a person of whom the employee is the parent or adoptive parent,

(b) the spouse of the employee or a person with whom the employee is living as husband or wife,

(c) a person to whom the employee is in loco parentis,

(d) a brother or sister of the employee,

(e) a parent or grandparent of the employee, and

(f) a person other than one specified in any of paragraphs (a) to (e), who resides with the employee in a relationship of domestic dependency.

Ultimately, the Adjudication Officer decided that the Complainant was entitled to take force majeure and that the failure of the Respondent to grant same was in breach of the Parental Leave Act, 1998 and awarded €7,000 in compensation and that the specific circumstances should have been taken into account.

There have been other similar cases that have resulted in compensation being awarded to employees, whose circumstances did meet the principles of something  unforeseeable and abnormal occurring, that was outside of the control of the employee and in this regard it is also useful to be reminded of the case of Carey v Penn Racquet Sports ltd 2001, when Carroll J, Justice Mela Carroll remarked that the criteria of urgency and indispensability “should not be judged in hindsight and must be looked at from the point of view of the employee when the decision is made not to go to work.

For employers, it will be necessary to consider the particular circumstances of each request, against the legislative framework and ensuring that a considered reasoned view is adopted, which in this case would have avoided the publicity and potential reputational damage that can arise when a case is reported.