The Government has published its response to two parts of the long-running Modern Workplaces consultation - flexible working requests and shared parental leave. The response on amendments to the Working Time Regulations to deal with the case law on sickness and holiday pay is still awaited.
On the right to request flexible working, the main proposals are, in summary:
- the right will be extended to all employees from 2014. It is currently limited to parents with children under 17 (or under 18 if the child is disabled) and some carers
- the statutory procedure under which employers are obliged to consider requests and only reject them if there is a clear business reason (listed in the legislation) will be replaced with a duty to deal with requests in a "reasonable" manner and within a "reasonable" time; an Acas statutory code of practice on the meaning of "reasonable" will follow. Acas is also tasked with producing non-binding guidance which will deal with, among other things, the thorny question of interaction with discrimination legislation
- the limit of one request per year will remain.
On flexible parental leave the key points, again in summary, are:
- 2 weeks of maternity leave and two weeks' paternity leave will remain the default position but the Government has ditched the idea of preserving the first 18 weeks of leave for the mother; it appears that the whole of maternity leave after the compulsory two week period will now be eligible for sharing
- women with partners (where they both meet the qualifying conditions for the flexible parental system) will be allowed to decide to end the mother’s maternity leave and pay and share the untaken balance as flexible parental leave and pay
- to access the flexible parental leave and pay system both parents (or the mother and partner) are likely to be required to have 26 weeks of continuous service by the 15th week before the expected week of childbirth (EWC) or to have worked for 26 out of the 66 weeks prior to the EWC with minimum average earnings for 13 of those weeks
- flexible parental leave can be taken by the biological father or the mother’s partner (husband, civil partner or partner, including same sex) consecutively (the response actually says "concurrently" but this must be assumed to be a mistake) with the mother, or both can be on leave together, so long as the total amount of leave does not exceed what is jointly available to the couple. At this stage it is unclear what happens if both the biological father and the mother's partner want to take leave
- flexible parental leave must be taken in a minimum of one-week blocks, to be agreed by the couple, with each subsequently agreeing their individual pattern of leave with their employer. If that pattern cannot be agreed, the leave defaults to a single block
- notification periods have not been settled yet (there will be further consultation on this) and there is no information yet on the status of employment contracts during flexible parental leave
- the Government will consider making arrangements for working parents who do not meet the qualifying requirements to receive statutory payments, but this would not be introduced before 2018.
There will also be a couple of changes to unpaid parental leave: it will increase from 13 to 18 weeks in March 2013, to comply with the European Directive, and the age limit will jump from five to 18 in 2015. It is not clear at this stage how this will apply to parents who already have children over five when the changes come in.