Family friendly rights: Part 2 – next steps on shared leave and flexible working

There are plans to introduce very significant changes to maternity, paternity and adoption leave rights, as well as rights to ask for flexible work arrangements.  The plans have been much trailed by Government and fulfil a promise from the original Coalition Agreement.  Having been the subject of consultation (in the Consultation on Modern Workplaces) many of the changes will be brought into effect over the next two years.

Flexible working for all

The first significant change, due to take effect next year, will be to the right to ask for flexible work arrangements.  This goes beyond family rights – although one can see that there may be circumstances where it would be useful in the extended family sense (moving from just those with parental responsibility for a child or caring responsibilities).

The proposal is that all employees with 26 weeks’ qualifying service will be able to make a formal request for flexible working – a change to the hours or place of work primarily.  At present only parents of children aged up to 16 (or 17 if disabled) and carers of adults have the statutory right to make such a request.

The most important implication of this change is the prospect for employers of more employees seeking flexibility, although with the increased use and indeed encouragement in some businesses of flexible or agile working, perhaps the significance of this change will not be felt.

The provision will remain a right to request a change in working arrangements, not a right to insist on change.  The  list of permissible business reasons for refusing a request will remain. However, instead of the rigid statutory procedure for considering requests that we have at present, with its strict timescales within which requests have to be dealt with and appeals convened, there will be a duty to consider requests to deal with requests in a “reasonable manner” and to notify employees of their decision within three months (or any longer period agreed with the employee).

ACAS will produce a Code of Practice and guidance to accompany the new legislation and is currently consulting on the content of the Code.

Some of the trickier issues which will need to be thought through and handled very carefully include:

  • Dealing with competing requests, and the scope for prioritising one employee’s needs above those of another;
  • obligations which apply in law (for example in relation to making reasonable adjustments for those with disabilities) and where, legally, an employer must prioritise;
  • balancing the ability not to prioritise against discrimination and other legal risks such as complaints of detrimental treatment or breach of trust and confidence.

Shared parental leave

A more fundamental change is expected to take effect in 2015, with a radical shake-up of the traditional maternity and paternity leave regime and the introduction of the new concept of ‘shared parental leave’.

It is useful just to remind ourselves of the current regime.  At present, all mothers can take up to 52 weeks’ maternity leave.  A father or spouse/partner of the mother has the right to 2 weeks’ paternity leave.  On top of this, the father or spouse/partner has, since  April 2011, been eligible for up to 26 weeks’ additional paternity leave: essentially, if the mother returns to work without using up her full maternity leave entitlement then up to 26 weeks of the balance remaining can be converted to paternity leave  to be taken once the baby has reached the age of 20 weeks.

Under the proposed new regime there will be much more flexibility for parents.  At any time after the mother’s period of compulsory maternity leave has ended (ie the first 2 weeks after birth or 4 weeks in the case of factory workers), she can opt to ‘convert’ her remaining leave and statutory maternity pay into ‘shared parental leave and pay’, provided certain qualifying conditions are satisfied.  Crucially, either parent will be able to take shared parental leave, so the mother does not have to return to work before the father/ her partner can benefit.

Various patterns of leave-taking may be possible and employers may find that parents seek to take the leave consecutively or indeed concurrently.  Provided the employer agrees, the leave can be taken in intermittent periods (i.e. discontinuously) for a few weeks at a time before the individual returns seeking to take the further leave later.  As long as an employer is happy to agree to a discontinuous pattern of one week periods, an intermittent pattern of leave is possible and if it works for the business, this may be easier to accommodate than a longer stretch of absence.  According to a further consultation issued on 25 February 2013 (http://news.bis.gov.uk/Press-Releases/Businesses-and-families-invited-to-shape-process-for-shared-parental-leave-68853.aspx) there will be a 2 week discussion period, once the notice of leave is issued, during which the leave pattern can be discussed and agreed. More guidance will be needed on precisely how this will operate. In the absence of the employer’s agreement however only one period of leave in a single block can be taken.

Up to 10 keeping in touch (KIT) days, will be granted to each parent during their respective leave.

The 8 week notice requirement to exercise the right to take the leave will remain and there will be other qualifying conditions that must be satisfied before parents become eligible. According to the most recent consultation paper there will be a joint test which both parents will have to satisfy in order to have the right to share, and each parent will also (if they satisfy the joint test) have to meet an earnings and service qualification in their own right, to determine if they, individually, can take shared parental leave:

  • The joint qualification is that both will have to have worked for any 26 out of the 66 weeks prior to  the expected week of birth/adoption (EWC) and earned at least £30 gross in at least 13 of those weeks.
  • Furthermore, to qualify for shared leave a parent will have to have 26 weeks’ continuous service with the same employer before the EWC and satisfy the lower earnings limit (£107 or more per week at present) in the 8 weeks prior to the EWC.

Surrogate parents

It is proposed that surrogate parents who meet the criteria to apply for a Parental Order will be eligible for statutory adoption pay and leave and shared parental leave, providing they meet the qualifying conditions.

The Government’s proposals were announced after two separate legal challenges were launched in the Courts in respect of the more limited rights which surrogate parents have currently: Surrogacy UK has brought judicial review proceedings against the government and is also supporting a separate claim brought on behalf of a surrogate mother: R (RKA) v Secretary of State for Work and Pensions. In a third case, the Court of Justice of the EU has been asked to rule that mothers through surrogacy are entitled to take maternity leave under EU law in certain circumstances.

The problem currently for intended parents is that a mother through surrogacy does not acquire maternity leave rights, at least on the face of our domestic legislation, (although the birth mother does and can take full maternity leave even though she will not be caring for the child after the birth).  A father through surrogacy arrangements can only exercise paternity leave rights if he is the biological father.

Time off for antenatal appointments

A further change will give a spouse, a civil partner or partner of a pregnant woman, or an intended parent through surrogacy the right to take unpaid time off work to attend two antenatal appointments. 

Adoption

The Government also plans to bring adoption leave for primary adopters into line with maternity leave by removing the qualifying requirement to have six months’ service and increasing adoption pay in the first six weeks so that it is calculated in the same way as maternity pay.

Furthermore, to tie in with changes to the adoption process, regulations are expected to follow that will enable prospective adopters to begin adoption leave when a child is placed with them as foster parents before the formal adoption placement takes place. 

Where eligible, adopters will also be able to take shared parental leave.

There will also be new rights for adopters to take time off, pre-placement, for adoption meetings as an opportunity to meet the child. If someone is adopting  a child on their own, they will be able to take  paid time off for to up to five appointments with pay.  Where a couple is adopting together, one member of the couple can take paid time off for up to five  appointments, and the other can take unpaid time off for up to two appointments.

Conclusions

These changes are all currently in the Children and Families Bill just introduced in February 2013 and although they have been under discussion for a significant period of time (some 18 months) they are at last coming through the legislative process.  Some of the details outlined above may yet change but we are assured of a period of significant change between now and 2015.