The initially proposed revision involved an amalgamation of maternity, paternity and unpaid parental leave. Under the revised proposals to be introduced from 2015, the current statutory maternity leave and ordinary paternity leave systems will be retained. However, additional paternity leave introduced in 2010 will be abolished.
Instead, mothers will be able to elect to replace their maternity leave (other than the compulsory maternity leave period) with a new system of flexible parental leave, shared between the mother and the father/mother's partner which may even be taken concurrently. Fathers/mothers' partners will also be given a new right to take unpaid time off work to attend two antenatal appointments.
The current adoption leave system will remain but with some significant enhancements. Adoption leave will become a 'day one' right with the ability to convert to the new flexible parental leave system. The level of statutory adoption pay will be increased to mirror statutory maternity pay. Additionally, surrogacy arrangements will be covered by adoption leave, with the right to unpaid leave for the intended parents to attend two antenatal appointments.
The current right to unpaid parental leave will also remain, however it will be extended. The total amount of unpaid parental leave that can be taken will be extended from 13 to 18 weeks from March 2013, as required by the underlying EU Directive. In addition, from 2015, the period within which the leave must be taken for each child will be extended up to the age of 18 instead of five as at present.
From 2014, the right to request flexible working will be extended to all employees. The current statutory procedure for dealing with a request will be abolished and replaced by a statutory code of practice. The new code will impose a duty to deal with a request in a 'reasonable' manner and in a 'reasonable' time period.
The proposals in detail...
Flexible parental leave
The key features of the revised plans are:
- Retention of existing statutory maternity leave and pay as the default position
The existing maternity leave provisions will remain unchanged and these will continue to be the default position for all employed women. So, all mothers will still be entitled to take up to 52 weeks' Statutory Maternity Leave (SML), regardless of length of service.
Employed mothers with 26 weeks' continuous service by the fifteenth week before the baby is due will continue to be entitled to 39 weeks' Statutory Maternity Pay (SMP). Those who do not qualify for SMP may receive maternity allowance (MA).
- Retention of existing ordinary paternity leave and pay
Employed fathers who have completed six months' service with their employer by the fifteenth week before the week the baby is due will remain entitled to up to two weeks' ordinary paternity leave to support the mother and to care for the child. Such leave will continue to be paid at the statutory flat rate.
- Additional paternity leave to be abolished and replaced with a new system of 'flexible parental leave'
Where mothers and fathers/mothers' partners both meet the qualifying conditions for the flexible parental system, the mother will be able to elect to end SML and SMP, or commit to ending it at a future date, and share the untaken balance as Flexible Parental Leave (FPL) with Flexible Parental Pay (FPP).
- The length of FPL will not exceed the balance of untaken SML, and the amount of FPP pay will not exceed the balance of untaken SMP or MA available at the point at which the woman returned or commits to returning to work. Each parent will qualify in their own right for FPL and FPP.
- The mother will be able to specify in advance the date SML will end. This will enable the father to start taking FPL while the mother is still on SML. Unlike the current arrangements for additional paternity leave, the mother will not have to return to work in order to commence taking FPL.
- FPL can begin at any point that the family chooses after the period of Compulsory Maternity Leave (two weeks (four weeks for factory workers) starting with the day on which the baby is born).
- FPL can be taken by the mother and the biological father or the mother's partner (husband, civil partner or partner).
- Parents will need to meet certain earnings or length of service qualifying criteria to opt to use the new flexible parental leave and pay system. In particular, each parent must have been employed by his or her employer for 26 weeks by the fifteenth week before the baby's due date
- Notification periods and 'other operational requirements' will be the subject of future consultation.
- Parents will be able to take flexible parental leave in minimum blocks of one week (not blocks of one day as originally proposed), in a pattern of their choice, provided their employers agree. In cases where employers and employees cannot agree on a proposed flexible pattern of leave, the default position will be that the employee takes the full amount of leave available to them in a single continuous block to start on a date of their choosing.
Illustrative example: The mother and father decide they would both like to be off work during the first six months of the child's life:
The mother starts maternity leave at birth and notifies her employer that she intends to return to work after 26 weeks.
At birth, the father takes two weeks' paid ordinary paternity leave, followed by a block of 24 weeks' flexible parental leave (13 weeks' paid and 11 weeks' unpaid) while the mother is on maternity leave.
The mother can take the remaining two weeks as unpaid flexible parental leave in one block of leave at any time after the ending of her maternity leave but before the child's first birthday.
- Enhanced occupational schemes:
The Government states that the new system will not affect the ability of employers to offer enhanced occupational maternity schemes. Employers will be able to continue to offer 'maternity' benefits to women only. Where employers offer such enhanced maternity schemes, there will be no legal requirement to create equivalent enhanced occupational 'flexible parental leave' schemes.
The Government states "we are clear that where employers wish to offer a maternity scheme of a fixed length, as many do currently, they will continue to be able to do so. The ability to offer such schemes will be unaffected by a family's choice to convert their statutory entitlement of maternity leave to flexible parental leave at an earlier stage".
Women electing to convert part of their maternity leave to flexible parental leave will only be entitled to the benefit of any enhanced contractual maternity benefits while they are on actual maternity leave, not flexible parental leave.
Employers can of course choose to offer enhanced schemes for those on flexible parental leave, but will need to offer such schemes to both men and women on such leave.
All pregnant women will continue to be entitled to paid time off during working hours to attend antenatal appointments, regardless of length of service.
Fathers, or a pregnant woman's partner, will have the right to take unpaid time off work to attend two antenatal appointments with their pregnant partner. This will be a 'day one' right without qualifying conditions.
Unpaid parental leave
Currently, each parent with one year's continuous service with their employer has the right to 13 weeks' unpaid leave per child which can be taken at any time before their child's fifth birthday. Parents of disabled children can take 18 weeks' unpaid leave until their child's eighteenth birthday. No more than four weeks' leave can be taken in any one year and leave must be taken in one-week blocks.
From March 2013, the amount of unpaid parental leave that can be taken per parent per child will increase from 13 to 18 weeks in order to comply with the revised EU Parental Leave Directive. In addition, from 2015, each parent will have the right to take the unpaid parental leave at any time until their child's eighteenth birthday, rather than age five as outlined under current rules (18 if disabled).
Currently, employees who have completed 26 weeks' service with their employer are eligible to take up to 52 weeks' adoption leave, unlike maternity leave which is a 'day one' right. Whereas statutory maternity pay is paid at 90% of average earnings for the first six weeks and then at a flat rate for the remaining 33 weeks, statutory adoption pay is paid only at the flat rate for the entire 39 weeks.
From 2015, the eligibility criteria and pay rates for adopters will mirror those for birth parents. So, primary adopters will be entitled to take up to 52 weeks' leave regardless of length of service. Those with 26 weeks' continuous service will be entitled to 39 weeks' statutory adoption pay, paid at 90% of average earnings for the first six weeks and then a flat rate for the remaining 33 weeks.
Primary adopters with partners, where they both meet the qualifying conditions, will also be able to elect to convert adoption leave to the flexible parental leave and pay system.
At present 'intended parents' of a child born via a surrogate do not fall within the current maternity leave or adoption leave regimes. Although this did not form part of the Government's initial plans, from 2015, the intended parents in a surrogacy arrangement will be eligible for statutory adoption leave and pay, and/or flexible parental leave and pay. This is subject to them meeting the qualifying criteria.
Additionally, both intended parents will be entitled to time off to attend two antenatal appointments with the surrogate mother carrying their child.
From 2014, the right to request flexible working will be extended to all employees who have 26 weeks' continuous service. The current statutory procedure for dealing with a request will be abolished and replaced by a Statutory Code of Practice. The Code will impose a duty to deal with a request in a 'reasonable' manner and in a 'reasonable' time period. However, the restriction that only one request may be made by an employee in any 12-month period will be retained.
Guidance will be produced for employers on the interaction of discrimination legislation with flexible working rights. This will also explain how the existing business reasons for refusing a request may assist an employer in prioritising competing requests.
- Flexible parental leave
The Government intends to consult "early in the New Year" on how the new system will work administratively, with a view to implementing the changes in 2015.
Please note the increase in the number of weeks of unpaid parental leave from 13 to 18 will be introduced from 8 March 2013, as required under the relevant EU Directive.
- Flexible working
The extension of the right to request flexible working to all employees will form part of the Children and Families Bill which the Government hopes to implement in 2014. A consultation on the new Code of Practice will begin in the New Year.
For a summary of the key changes, please read our quick reference guide to the changes in flexible parental leave and flexible working.