Extension to rights of flexible working and parental leave

In May 2011, the Government published a consultation on Modern Workplaces which included proposals to make employment practices within the UK more flexible and family friendly. On 13 November 2012, the response to this consultation was announced confirming that the right to flexible working will be extended from 2014 with a new system of statutory parental rights following in 2015.

Flexible working

Currently, parents of children under 17, parents of disabled children under 18, and some carers have the right to request flexible working arrangements provided they have at least 26 weeks continuous employment. An employer is under a duty to consider this request: only one request may be made within a 12 month period.

The consultation response announced that the requirement of being a parent or carer is to be removed and the right to request flexible working will be extended to all employees with 26 weeks continuous employment or more. There will still be a limit on the number of requests made by employees and only one request may be made in a 12 month period. In addition to this, the statutory procedure for making these requests will change and employers will be under a duty to consider requests in a reasonable manner and within a reasonable period of time. ACAS guidance will be provided to employers as to how to deal with requests and how to deal with conflicting requests from different employees. There will be no obligation on employers to grant requests but merely an obligation to consider these requests.

The Government is aiming to implement these changes to the flexible working system by 2014 with the introduction of the Children and Families Bill which is expected to be introduced by April 2013.

It remains to be seen what difference these changes will make as it is likely that parents and carers will continue to be the most likely to request flexible working, therefore the removal of this criteria may have little effect. Under the current proposals relating to employee-owner contracts, the right to request flexible working has been removed and therefore should the take up of these contracts be significant, not all employees will have the same rights in relation to flexible working.

Flexible Parental Leave

Parental leave rights are currently weighted towards women and the extension of these rights aims to allow fathers to play a greater role in raising their children with mothers returning to work at a time that is right for them.

The Government has announced that there will be a new system of shared parental leave introduced from 2015. The default position for all employed women will remain as 52 weeks of maternity leave (39 weeks paid) with a 2 week compulsory period of maternity leave which applies from the day of the child’s birth. The remaining entitlement of 50 weeks leave and 37 weeks of pay can be shared between parents.

In circumstances where the mother and father both meet the qualifying conditions for flexible parental leave, the mother will be able to end her maternity leave or commit to it ending at a date in the future and share the untaken maternity leave and pay as flexible parental leave and pay. This approach will enable mothers to return to work early, without losing the remaining entitlement of their maternity leave. Fathers and partners who meet the relevant eligibility criteria will still be entitled to two weeks ordinary paternity pay (at a flat rate). Fathers will also be entitled to take unpaid leave to attend two ante-natal appointments.

In order to qualify for flexible leave, both parents, or the mother and her partner, will have to meet requirements in relation to length of service and economic activities. The leave can be either taken consecutively or concurrently as long as the total time taken does not exceed the leave entitlement. A woman will be able to specify in advance if she intends to end her maternity leave early and use the remaining leave and pay as flexible leave and pay. Parents can chose to take the leave concurrently or take small blocks of leave (minimum of one week blocks).

The parents must be working for the same employer during the whole of the flexible parental leave, regardless of whether the leave is taken as a continuous period or shorter separate periods. If an employee changes jobs, flexible parental leave cannot be carried over. Employers are not obliged to agree to flexible parental leave plans and where an agreement cannot be reached between the employer and the employee, a parent’s paid leave will be taken in one continuous block starting on a date of their choice.

Unpaid parental leave entitlements will also be increased from 13 to 18 weeks (per parent per child) on 8 March 2013 but the maximum limit of 4 weeks per year remains in place. From 2015, the age limit on parental leave will be increased and each parent will have the right to up to 18 weeks unpaid leave for each child under the age of 18.

In addition to those increased rights set out above, there is also an extension in rights for adoption and surrogacy. Statutory adoption leave will no longer have qualifying conditions for employees and employees will be entitled to this regardless of their length of employment. Statutory adoption pay will be enhanced to 90% of the primary adopters salary for the first six weeks of the leave period and if the parents meet the qualifying criteria, they will become eligible for flexible parental leave and pay. Prospective parents in a surrogacy arrangement that meet the criteria to apply for a Parental Order will also be eligible for statutory adoption leave and pay and flexible parental leave and pay (subject to meeting the relevant qualifying criteria). Both prospective parents will also be entitled to time off to attend two antenatal appointments with the surrogate mother.

Commentators have expressed concerns that the system of shared parental leave may be difficult to administer and may create organisational problems for employers given that employees have the right to customise their own leave as they choose. One particular issue that may arise from this is the matter of maternity cover which, if for example the leave is broken up into blocks of one month at a time, may be difficult to find for each individual one month period.

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