The government has published its long awaited response to the parental leave and flexible working elements of the Modern Workplaces consultation, and has announced plans to create a new system of flexible parental leave and pay, and to extend the right to request flexible working to all employees.

The government has published its long awaited response to the parental leave and flexible working elements of the Modern Workplaces consultation, and has announced plans to create a new system of flexible parental leave and pay, and to extend the right to request flexible working to all employees.

Flexible parental leave and pay

The government makes clear in its consultation response that it views the existing system of maternity and paternity leave as outdated and unduly restrictive. The proposed changes are intended to allow working parents greater choice, to encourage shared parenting, and to help to remove the "career penalty" that mothers currently face when trying to attain senior positions in business.

The key proposals are as follows:

  • all employed mothers will remain entitled to 52 weeks of maternity leave, (39 of which will be paid, as currently), while fathers will remain entitled to two weeks’ paternity leave and pay;
  • the mother must take at least the first 2 weeks after the birth as maternity leave, (4 weeks for manual workers). After this, if the mother returns to work before the end of the 52 week period, any remaining leave and pay can be shared between the mother and her partner / the child's father, provided that each of them meets the relevant qualifying criteria in their own right. (The intention is that the qualifying criteria will mirror those that apply to existing entitlements to maternity pay / paternity pay and leave);
  • if the mother notifies her employer in advance that she will not use the entire 52 week period of maternity leave, then any balance becomes available as flexible parental leave immediately so that her partner / the child's father can take that leave concurrently. However, no more than 12 months can be taken in total, with no more than nine months paid. (It is envisaged that the notification period for return to work / ending maternity leave will be 8 weeks, as under the current system, but this will be the subject of further consultation);
  • where the parents are sharing flexible parental leave, it can be taken in a minimum of one-week blocks. The parents will be able to agree between themselves how they wish to take the leave but each parent must seek their employer's agreement to the proposed pattern of leave. If an employer and employee cannot agree on a pattern of leave, the employee is entitled to take the total number of weeks proposed as a single block, to begin on a date of his or her choosing;
  • the right will extend equally to adoptive parents, and to parents of a child born through surrogacy who meet the criteria to apply for a Parental Order; and
  • fathers (and partners) will be given a new right to unpaid leave to attend two ante-natal appointments with the child's mother.

The government intends to legislate as soon as parliamentary time allows, and to bring the new system into force in 2015. It will consult further on the detail of how the regime will operate in early 2013. However, the government has said that proposals to increase fathers' entitlement to paternity leave and pay will not be implemented until the economic situation has improved.

In the meantime, unpaid parental leave will increase in March 2013 from 13 to 18 weeks in order to comply with the revised EU Parental Leave Directive (No. 2010/18). A further change to unpaid parental leave, increasing the age limit of the child in respect of whom leave is taken from 5 years to 18, is expected to come into force at the same time as the new flexible parental leave regime in 2015.

Extension of the right to request flexible working

Currently, any employee who has a child under 17, (18 if the child is disabled), or who cares for an adult, has the right to make a request for flexible working arrangements. The government's proposals are to:

  • extend this right to all employees from 2014;
  • retain the current qualifying condition of 26 weeks' continuous employment;
  • replace the current statutory request procedure with a duty for employers to deal with requests in a reasonable manner and within a reasonable period of time, (the meaning of "reasonable" to be the subject of further consultation via ACAS);
  • retain the current limit of 1 request within a 12 month period; and
  • produce a statutory Code of Practice, again in conjunction with ACAS, providing guidance to employers on issues such as the meaning of "reasonable", the interaction between discrimination legislation and flexible working rights, and how to deal with competing requests for flexible working.