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Family leave – bedevilled by detail

19 May 14

The effect of pending changes to flexible working and the introduction of shared parental leave

by Jane Green

The Government press release about the Children and Families Act 2014 boldly states that it has the potential to bring about “transformative change” in the way working parents balance their home and working lives. However, before that prophecy can begin to be fulfilled, there is a lot of wordage to be waded through.

Flexible working

The first pending change affects more than just working parents. Part 9 of the Act amends the Employment Rights Act 1996 (“ERA”) to extend the right to request flexible working to all employees with 26 weeks’ continuous service, as from 30 June 2014.

The current statutory procedure will be abolished and, instead, employers will simply have a duty to consider requests reasonably. This will be underpinned by an Acas code of practice on “Handling requests to work flexibly in a reasonable manner”, which sets out a broad principles-based approach to determining requests. It is supplemented by a companion good practice guide, covering areas such as dealing with multiple requests, avoiding discrimination and the business reasons to consider. Both the code and the guidance can be found at www.acas.org.uk/index.aspx?articleid=1616

Jenny Willott, Minister for Employment Relations and Consumer Affairs, has commented that part of the rationale for extending the right to request is to help combat problems caused by abolition of the default retirement age. Employees approaching retirement will be able to request phased retirement via these means.

Ante-natal appointments

Part 8 of the Act sets out a new statutory right for dads/partners who are employees or agency workers to take leave to attend two ante-natal appointments, up to a maximum of 6.5 working hours each. Unlike a woman’s right to such time off (ERA, ss 55-57), time off will be unpaid. This will be implemented as from 1 October 2014 and the individual can be required to provide a written declaration before being entitled to attend any such appointment. A complaint can be made to the tribunal if the employer unreasonably refuses time off, with remedies being a declaration and compensation.

Shared parental leave

The foundations of the shared parental leave (SPL) system are laid by Part 7, which inserts a new chapter 1B in Part 8 of ERA. Many subsections of the new ss 75E-75K refer to regulations being made, and at www.gov.uk/government/publications/shared-parental-leave-and-pay-draft-legislation, you can see the five sets that the Government now intends to lay before Parliament ahead of Part 7 coming into force, stretching to more than 70 pages.

Where the expected week of birth or adoption placement is on or after 5 April 2015, mums, dads and adopters will gain the right to SPL in the first year of a child’s life or adoption placement.

Theoretically, a mother could transfer 50 weeks of leave and 37 weeks of pay to her partner, as only the first two of 52 weeks’ leave would be compulsory maternity leave.

The Draft Shared Parental Leave Regulations set out: how entitlement to SPL is gained; how to calculate the total amount of SPL available to the mother and her partner; the notice and declarations to be made by the mother and her partner in order to qualify for SPL; the periods of notice for requesting SPL; and the process for determining whether to approve a request. There are also regulations dealing with curtailment of maternity or adoption leave in order to take SPL, and three sets dealing with the pay aspects.

Much of the complexity in the new scheme arises from the fact that leave can be requested in discontinuous chunks, and the mother and her partner can request to take leave at different times or concurrently. Tracking that no more than 52 weeks’ leave is used in total may therefore be thorny for employers and employees alike, with reliance being placed on declarations from employees. The difficulties perhaps become more acute when you add into the equation the 20 days each that the mother and her partner will be able to use during SPL, which are equivalent to – and in addition to – the 10 “keeping in touch” days which can be used during maternity leave, but which are not given that name.

That all said, the impact assessment which accompanied the administrative consultation shows that less than 1% of fathers have taken additional paternity leave since its introduction in 2011. BIS estimates that only 2-8% of partners will avail themselves of SPL.

It is often said that the devil is in the detail. In this instance, it is perhaps more accurate to say that the level of detail is likely to bedevil the new scheme and lessen the potential for it to bring about the wished-for transformative change. 

Jane Green, Partner, Employment, Maclay Murray & Spens

 

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