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.

  1. 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:

  1. The employee requests a flexible working arrangement;
  2. The employer agrees the request or arranges a meeting to discuss it;
  3. The employer has to notify the employee of your decision within three months of receipt of the request;
  4. The employer has to give the employee a chance to appeal;
  5. 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fails to attend two consecutive meetings or an appeal without good reason, the employer can treat the request as withdrawn.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  • unfairly treats the request as withdrawn. An employee must bring a tribunal claim within three months of the date on which the application is treated as withdrawn or the final decision is communicated.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.

Guidance

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.

Action point

  • Amend your flexible working policy before April 2014.
  1. 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:

  1. 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.
  2. 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:

  1. 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.
  2. An employee must give eight  weeks’ notice of his or her intention to take shared parental leave.
  3. 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.
  4. 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.

The details

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.

Action points

  1. 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.
  2. An employer should start considering  which record-keeping procedures it  will need to put in place.