Flexible parental leave on the horizon
This article was included in the spring/summer 2011 issue of People - the employment and pensions newsletter.
The Government recently announced its plans to create a modern workplace and culture of flexible, family-friendly employment practices. Forming part of its wider employment law review, discussed in our "Coalition Government - one year on" article, the Government's plans have four key elements:
- a flexible parental leave system;
- a right for all employees to request flexible working;
- changes to the Working Time Regulations; and
- equal pay audits.
The Government boldly states that, taken together, these measures will "allow us to move a significant way towards our vision of modern employment based on freedom, fairness and responsibility for both employers and employees". Here is an overview of its key proposals.
Flexible parental leave
Under the Government's proposals, once the early weeks of maternity and paternity leave have ended, parents would be able to share the overall leave allowance between them. Unlike the current system, this leave could be taken in a number of different blocks and both parents could take leave at the same time.
The proposals, which will not be in place before 2015, include the following:
- 18 weeks' maternity leave and pay, available in one continuous block around the birth. The existing statutory maternity pay and maternity allowance arrangements for this period, and the two weeks' (ordinary) paternity leave and pay, would be retained.
- The remainder of existing maternity leave would be reclassified as parental leave, available to either parent on an equal basis (similar provisions will apply for adopters and same-sex couples).
- Each parent would have exclusive use of four paid weeks' leave. The remaining weeks would be available for either parent.
- The new parental provisions will incorporate the existing right to unpaid parental leave beyond the first year of the child's life, so parents will have a single right to parental leave which they can use from the end of maternity leave through their child's early years. The new provisions will also supersede those for additional paternity leave and pay.
The consultation also considers whether to extend the age limit for taking unpaid parental leave beyond the existing limit of the child's fifth birthday and give fathers the right to unpaid leave to attend antenatal appointments, either as a new entitlement or as part of a father's wider parental leave entitlement.
The Government proposes to extend the right to request flexible working (which currently applies to parents of children under 17, of disabled children under 18 and to certain carers) to all employees. The aim is to help employees balance their work, family and wider responsibilities and help employers to retain experienced and skilled staff. It is proposing to replace the existing statutory process for considering requests with a duty to consider requests “reasonably”, alongside a new Code of Practice to guide employers in considering requests. The existing business reasons under which an employer may refuse a request to work flexibly would not be changed.
Existing rules currently restrict employees to only one request for flexible working in any 12 month period. The Government is seeking views on whether amending this restriction would help to support employees who only need a temporary change to their working arrangements.
Working Time Regulations
The Government proposes to make changes to the Working Time Regulations 1998 (WTR) to take account of European Court of Justice case law (i.e. which has established the principle that workers who have not had the opportunity to take their annual leave because of sickness absence, maternity or parental leave in the current leave year, must be able to carry it forward to the following leave year). The key proposals are that:
- The WTR are amended. Where someone has been on sick leave, the Government proposes to allow employers to limit the ability to carry over annual leave to the four weeks of leave required under the Working Time Directive (i.e. this excludes the additional 1.6 weeks required by the WTR and any further contractual leave).
- Employers could, if they wish, insist that leave untaken due to sickness absence must be taken in the current leave year, where possible, rather than being carried forward. The Government also proposes to provide additional flexibility to allow employers to defer that leave until the following year when this can be justified in terms of business needs.
Finally, the Government acknowledges that, despite equal pay legislation, there is still a significant gender pay gap and evidence of non-compliance with the law. It is therefore proposing to require Employment Tribunals that have found an employer to have discriminated in contractual or non-contractual pay matters to make that employer conduct a pay audit, unless the Tribunal is satisfied it would not be productive to do so.
The consultation paper introduces a whole host of changes; some will be controversial (e.g. the equal pay proposals), others less so (e.g. clarifying the WTR following European case law). The Government aims to legislate on flexible parental leave, flexible working and equal pay as soon as possible in this Parliament. It intends to introduce secondary legislation to amend the WTR, with implementation likely to be in 2012. Consultation closes on 8 August 2011 so, if the proposals are likely to impact significantly on your organisation, now is the time to respond to the consultation.