In May 2011, the government published the Modern Workplaces consultation paper outlining its intention to redress the balance between work and family life. The government hopes to provide "a culture of flexible, family-friendly employment practices" by reforming the current legal basis for flexible parental leave and flexible working. Most of the changes will be introduced by the Children and Families Bill 2012-13 and the Parental Leave (EU Directive) Regulations 2013.
On 13 November 2012 in response to the Modern Workplaces consultation Nick Clegg, the Deputy Prime Minister, announced plans for flexible parental leave and the right to flexible working for all. From 2014 the Government is due to legislate to allow flexible working for all parents and from 2015 the UK will have a new system of flexible parental leave. The below provides you with a summary of main changes that will affect employers and employees when the new law is implemented.
What is the current position?
- Maternity rights: mothers are entitled to paid leave to attend antenatal appointments and 52 weeks' maternity leave (39 weeks paid and 13 weeks unpaid). Statutory maternity pay (SMP) is paid at 90% of average earnings for the first six weeks and then a flat rate (currently £135.45 (£136.78 from April 2013) or 90% of the employee’s average weekly earnings, whichever is lower) for the remaining 33 weeks.
- Paternity rights: fathers are entitled to two weeks' ordinary paternity leave (OPL) with ordinary statutory paternity pay (OSPP) at the flat rate (as noted above) Fathers are also entitled to additional paternity leave (APL) for up to 26 weeks with additional statutory paternity pay (ASPP) at the flat rate. This is subject to the mother returning to work within her period of maternity leave that she has opted not to take.
- Adopting Parents rights: adopting parents are entitled to 52 weeks' adoption leave (39 weeks paid and 13 weeks unpaid). Statutory adoption pay (SAP) is paid at 90% of average earnings for the first six weeks and then a flat rate (as noted above) for the remaining 33 weeks
- Unpaid Parental leave: employees with one year's complete service are entitled to 13 weeks' unpaid parental leave per child (increased to 18 weeks’ from 8 March 2013), which can be taken from the birth of the child up to their fifth birthday. Parents with disabled children are entitled to take 18 weeks’ parental leave, which can be taken up to the child's 18th birthday. Parental leave must be taken in blocks of one week and employee’s can only take four weeks' in any one year.
- Flexible Working: Parents who have 26 week’s continuous service and care for children under the age of 17 - or 18 if the child is disabled - and carers who look after a relative over the age of 18 are entitled to make a request to work flexibly. Only one request may be made in any 12 month period.
What’s round the corner?
- Shared parental leave and pay
The government’s proposals allow eligible employees, not just mothers or adopting parents, to take a maximum of 52 weeks' leave and 39 weeks' statutory pay upon the birth or adoption of a child. Other than the first two weeks after the child’s birth, parents will be able to share the entire period of leave. Shared parental leave can be taken by the biological father or the mother’s partner (husband, civil partner or partner, including same sex). It can be taken separately or concurrently with the mother whilst on maternity leave or after she has returned to work (so long as the joint period of leave taken is no more than what is legally available to the couple). It is envisaged that adopters and parents in a surrogacy arrangement will also benefit from the same legal entitlement.
- Time off to attend appointments
Parents in a surrogacy arrangement, fathers and partners (including civil partners) of a pregnant woman will also have the right to take unpaid time off work to attend up to two antenatal appointments (up to a maximum of six and a half hours per appointment).
The government’s proposals provide that adopters may also take time off to attend appointments to meet the child they intend to adopt (up to a maximum of six and a half hours per appointment). If an employee is adopting alone, the proposals entitle them to paid leave for up to five appointments. If an employee is adopting with their partner, the proposals allow them to elect one adopter to attend five paid appointments whilst the other adopter can be granted unpaid leave to attend up to two appointments.
- Right to request flexible working
The right to request to work flexibly will be extended to all employees with 26 weeks' service and not just parents or carers. The proposals suggest that the current statutory regime will be abolished and employers will have to consider requests in a reasonable manner. Employers will have to confirm their decision to employees within three months of a request.
The government’s proposals also suggest that a new statutory code of practice and a best practice guide will be introduced for employers that will outline what a “reasonable process” is.
What do we think?
Despite living in what we believe to be a modern society, it is still usually the mother who requests to work on a part-time or flexible basis after the birth of a child.
The flexible working proposals acknowledge that parents are not the only carers of children. For example, grandparents and other member of family can often help with childcare. In reality, the success of the flexible working proposals will depend on employers. Due to the size and resources of an organisation, it is not always possible for employers to agree to flexible working requests on operational or financial grounds. Genuine business reasons do – and will continue to – exist for refusing an employee application to work flexibly or on a part-time basis. If anything, the government’s proposals may lead to additional processes and paper work, which is unlikely to be welcomed by some business owners. The same barriers that have allowed employers to refuse flexible working requests will continue to exist and some may argue that the proposals do not go far enough when business reasons will inevitably trump a worker’s need to work flexibly.
The government hopes its proposals for mothers and fathers to share parental leave will help to remove any stigma relating to flexible working patterns. However, many believe there is still a long way to go before that will happen. Barriers to overcome are general workplace stereotypes that may still exist in particular industries or sectors of the business community. Many fathers may not feel comfortable requesting a period of paid parental leave, despite being legally entitled to do so.
What is positive is the government’s awareness that family related rights need to reflect modern families and working patterns. The proposals are definitely a step in the right direction as they provide all workers the right to request flexible working and will give parents the right to pick and choose how best to utilise paid parental leave. That said, operational and cultural barriers are a long way from being eradicated and the success of these reforms will predominantly rely on a shift in what may be deemed the ‘norm’ by both employees and employers. The more employers are seen to promote and implement the reforms, the more likely employees will exercise their rights. Despite the government’s best intentions, only time will tell how successful these reforms will really be.
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.