The Children and Families Bill 2013 introduces the extension of the right to request flexible working to all employees and the new concept of shared parental leave. The changes to flexible working will come into force in April 2014 and shared parental leave will be available from April 2015.
- The extension of the right to request flexible working
All employees who have worked for 26 weeks or more will have the right to request flexible working. The employer will have to consider requests in a reasonable manner and within a reasonable period of time. The current statutory procedure will be abolished.
The new procedure
The employer will have to take the following steps:
- The employee requests a flexible working arrangement;
- The employer agrees the request or arranges a meeting to discuss it;
- The employer has to notify the employee of your decision within three months of receipt of the request;
- The employer has to give the employee a chance to appeal;
- If the employee fails to attend two consecutive meetings or an appeal without good reason, the employer can treat the request as withdrawn.
An employee will have the right to bring a tribunal claim if the employer fails to hold a meeting within 28 days of the request, fails to notify the employee of:
- a decision;
- fails to offer a right to appeal;
- refuses the request for a reason other than the business reasons under section 80G of the Employment Rights Act 1996;
- rejects the application on incorrect facts;
- delays in giving the employer’s decision; or
- unfairly treats the request as withdrawn. An employee must bring a tribunal claim within three months of the date on which the application is treated as withdrawn or the final decision is communicated.
In addition, an employee may be able to bring a claim for direct or indirect discrimination if their request is rejected. An employee may also treat a rejection that amounts to discrimination as a fundamental breach of contract, potentially allowing them to resign and claim constructive dismissal.
The Advisory, Conciliation and Arbitration Service (“Acas”) is currently consulting on a code of practice for flexible working requests and intends to publish a good practice guide at the same time as the final code, early in 2014.
- Amend your flexible working policy before April 2014.
- Shared parental leave
The new system will give parents more choice and freedom in how they share the care of their child in the first year after birth, enabling both parents to keep a strong link to the workplace. This scheme will allow a woman to return to work early and share the remainder of her leave and pay with her partner, although the current entitlement to 52 weeks of maternity leave and 39 weeks of pay will remain the default position.
Proposed eligibility criteria for shared parental leave
There are two proposed tests to determine whether parents qualify for shared parental leave and parents will have to pass both tests. They are:
- The joint test - the partner must have worked for any 26 out of the 66 weeks preceding the child’s due date or adoption matching date and earned at least £30 gross per week for any 13 of the 66 weeks.
- The individual test - an employee must have 26 weeks’ continuous employment with the same employer at least 15 weeks before the expected week of confinement and still be working for the same employer when he takes the parental leave.
To qualify for shared parental pay, an employee must have earned an average weekly salary of at least the lower earnings limit (currently £109) for eight weeks before the expected week of birth/adoption.
Employees will be required to provide an indication of their expected pattern of leave, as part of the notification of their eligibility and intention to take shared parental leave.
The new procedure
The Government has consulted on how the system will work in practice. The proposed procedure is:
- The woman must give at least eight weeks’ notice of her intention to end maternity leave and pay and enter the shared parental leave system. This can be given before the birth but she will have six weeks after the birth to revoke it.
- An employee must give eight weeks’ notice of his or her intention to take shared parental leave.
- The employer and employee should agree the pattern of leave within two weeks. If it cannot be agreed, the parent will be able to take the leave requested in one block.
- The employer is only obliged to accept three notifications of intention to take leave per employee. This includes the initial request and two further changes.
Eligible employees will have up to 50 weeks’ leave and 37 weeks’ pay, as the mother must take the first two weeks of leave after the birth. Following this, she can choose to end her maternity leave and share the remaining leave with her partner as shared parental leave. This can be taken in a single period or in multiple blocks. The cut-off point will be 52 weeks from the birth.
Additional paternity leave and additional statutory paternity pay will be abolished. A parent will be able to take ordinary paternity leave in conjunction with shared parental leave.
Parents will have a joint entitlement to shared parental leave and pay. The maximum amount of shared parental leave and pay available will be the balance of the mother’s untaken maternity leave and pay or allowance. The leave can be taken together or separately. Each parent will have up to 20 ‘keep in touch’ days while on shared parental leave, in addition to the 10 days on maternity leave.
These are days on which a parent can carry out work or training for his or her employer, without bringing his or her leave to an end.
Partners will also be given unpaid time off to attend two ante-natal appointments, with a maximum duration of six and a half hours per appointment. If an employer refuses unreasonably a request then the employee’s remedy is compensation amounting to twice his or her hourly salary for each hour for which he or she would have been absent.
Employees will be entitled to all contractual terms and benefits (such as pension contributions, annual leave and private use of a company car) apart from pay during a period of shared parental leave. They will continue to accrue holiday entitlement and can also carry forward unused holiday into the next holiday year.
An employee may bring an automatic unfair dismissal claim if the employer dismisses him or her for a reason based on his or her return from shared parental leave or if the employer fails to provide the same role to an employee who is returning to work from any period of leave that totals 26 weeks or less in aggregate, even if taken in separate blocks.
- An employer needs to plan amendments to staff handbooks for when shared parental leave comes into force in April 2015, as parental leave policies will need to be updated.
- An employer should start considering which record-keeping procedures it will need to put in place.