The Government has today published its response to the consultation on "Modern Workplaces", confirming a further overhaul of family-friendly rights in the UK. I have set out the key points below.

Extending the right to request flexible working to all employees

The right to request flexible working will be extended to all employees by 2014 through a new Children and Families Bill. The current legislation entitles those with children under 17 years old (or 18 years old if the child is disabled) to request flexible working patterns.

The right will be extended to all employees with 26 weeks continuous service with their employer. This extended right will be accompanied by reform of the present "overly burdensome" statutory request procedure which is to be replaced by a Statutory Code of Practice requiring employers to deal with requests "reasonably" and within a "reasonable" period of time. The consultation has indicated that the Code will contain guidance for employers on the meaning of "reasonable" in this context.

ACAS will consult on the content of this Code in the course of 2013. The Code is intended to have a statutory basis in order to allow Employment Tribunals to take account of its provisions when considering flexible working complaints.

Flexible parental leave rights for working parents

The consultation response confirms the introduction of flexible parental leave and statutory flexible parental pay in 2015 in order to encourage mothers and fathers to share parental responsibilities in the first year of babies' lives.

Mothers will remain entitled to 52 weeks' statutory maternity leave, with statutory maternity pay continuing for 39 weeks as is the present position. However, mothers with partners will be able to end their maternity leave and pay (or commit to ending it at a future date) and the child's biological father (or the mother's partner) will be able to take the balance of any remaining leave and pay as flexible parental leave and pay. The definition of "mother's partner" is understood to include husbands, civil partners or partners, including same sex partners.

Notably, the leave can be taken concurrently by both parents (i.e. the mother on maternity leave and the father or mother's partner on flexible parental leave), provided the total amount of leave does not exceed the total jointly available to the couple (i.e. 52 weeks). There is also likely to be a caveat that flexible parental leave be taken in blocks of one week at a time, subject to agreement between the parents and their respective employers.

To be entitled to flexible parental leave, each parent (or the mother and her partner) will have to satisfy certain earnings and length of service criteria, the detail of which criteria will be announced in due course. For now, the consultation suggests that the criteria will be:

  • 26 weeks' continuous service with the same employer by the 15th week before the expected week of child birth; and/or
  • the employee must have worked for 26 out of the 66 weeks prior to the expected week of child birth, and to have earned a minimum average specified amount for 13 out of those 66 weeks.

The employee taking advantage of flexible parental leave may also be entitled to statutory flexible parental pay, subject to             qualifying criteria (details awaited). The Government has indicated that this new statutory payment will replace additional statutory paternity pay (which will be abolished).

The Government intends to consult on the particular implementation arrangements for this reform in the first half of 2013.

Right to time off to attend antenatal appointments extended

The Government has pledged to create a new right for fathers and partners of pregnant women to unpaid time off to attend two antenatal appointments with their pregnant partner. The consultation response also indicates that both intended parents in a surrogacy arrangement will be similarly entitled to time off to attend two antenatal appointments with the surrogate mother carrying their child. We have very little detail on this proposal but we understand that consultation on this measure will take place in early 2013, with a view to implementation in 2015.

Unpaid parental leave increased to 18 weeks

In accordance with member states’ implementation obligations under the Parental Leave Directive (2010/18/EU), the Government has now confirmed that it will increase unpaid parental leave entitlement from 13 to 18 weeks from March 2013 and has provided draft legislation to implement this change. The Government has also indicated that it intends to increase the age limit on parental leave from the current 5 years to 18 years, providing each parent the right to up to 18 week’s unpaid parental leave for each child under 18. However, this latter change is not expected to take effect until 2015.

Adoption leave and pay

Adoption leave is to be reformed in order that there will be no qualifying conditions for eligible adopters who are matched with a child. This will bring the right to adoption leave in line with the maternity leave provisions - namely by the removal of the 26 weeks' continuous service qualifying test for statutory adoption leave. Statutory adoption pay is also to be amended to mirror statutory maternity pay, to the extent that it will now equate to 90% of the primary adopter's salary for the first six weeks' leave. Subject to meeting the qualifying criteria noted above, adoptive parents will also be eligible to the new right to flexible parental leave and pay. This reform is expected to come into force in 2015.

Surrogacy arrangements

The consultation response confirms that individuals who are to become parents through a surrogacy arrangement may be eligible for statutory adoption leave and pay, subject to the qualifying criteria. In addition, the new right to flexible parental leave and pay will also be available to intended parents in a surrogacy arrangement to enable both parents to care for the child following the birth.

Today's consultation response does not cover the annual leave and sickness absence questions raised in the "Modern Workplaces" consultation. The expectation is that the Government will issue proposals to bring UK law into line with the recent European caselaw on carrying over annual leave. For more on this particularly complex topic see our questions and answers here.