After days of speculation in the media and, in a bid to “to achieve fully shared childcare from day one” of a child’s life, the Government has today announced its intentions for changing parental leave and the right to request flexible working. In summary, the changes are:

  • After an initial two weeks’ compulsory maternity leave taken by the mother, eligible parents will be able to convert share the remaining maternity leave and pay into ‘flexible parental leave’ and pay and share it between them – taking it in turns or taking time off together.
  • Flexible parental leave will be subject to a limit of 50 weeks’ leave in total and 37 weeks’ statutory pay.
  • Adopters will have the same rights as other parents to maternity leave and pay: they will no longer be required to complete 26 weeks’ employment and adoption pay will be the same as maternity pay. Where eligible, they will also be able to take flexible parental leave.
  • Fathers and partners of pregnant women will be given a right to take unpaid leave to attend two antenatal appointments.
  • Paternity leave will remain at two weeks but will be reviewed in 2018.
  • Surrogate parents who meet the criteria to apply for a Parental Order will be eligible for statutory adoption pay and leave and flexible parental leave, providing they meet the qualifying conditions.
  • All workers with qualifying service will have the right to request flexible working, but an employer retains the right to refuse on the existing statutory grounds.
  • The intention is to introduce the flexible working changes in 2014 at the earliest and the new flexible parental leave from 2015.

Flexible working for all employees

Currently, there is a right to request a change in hours and place of work if the request relates to a child under 17 years old (or 18 if the child is disabled), or, a person aged 18 or over in need of care. It is subject to 26 weeks’ continuous employment and other conditions.

While the 26 weeks’ qualifying service is retained, the Government will replace the current statutory procedure, through which employers consider flexible working requests, with a duty on employers to deal with requests in a reasonable manner, and within a ‘reasonable’ period of time. A statutory Acas Code of Practice will be written to give guidance as to the meaning of ‘reasonable’ to employers and there will be additional Acas guidance for employers on how to prioritise conflicting requests received at the same time.

New flexible parental leave

To qualify for statutory flexible parental leave, the Government plans to mirror the current qualifying criteria for ordinary paternity leave: an employee must have been employed by the same employer for 26 weeks by the 15th week before the baby’s due date.

Under the new system for flexible parental leave, a qualifying woman would be able to share her untaken maternity leave and pay or allowance as flexible parental leave and pay with her qualifying partner. The length of flexible parental leave available would be equal to the untaken balance of maternity leave. The amount of flexible parental pay available to the parents cannot exceed the balance of untaken statutory maternity pay or maternity allowance.

Unlike the current arrangements for additional paternity leave, a woman ending her maternity leave will not have to return to work in order for the remaining leave to become flexible parental leave. The mother will be able to notify the date on which she plans to end maternity leave in advance, and the balance can become available immediately. Her partner will be able to start taking flexible parental leave (with the necessary notification period) whilst the mother is still on maternity leave. This will enable parents to take the flexible parental leave concurrently.

The intention is for flexible parental leave to be taken in a minimum of one-week blocks. The parents can decide between them how much of the leave each of them will take. As for the pattern of taking leave, if either of the parents does not intend to take their allocation in a single block, then they will need to agree the leave pattern with their individual employer. In the event that the pattern could not be agreed, the leave would default to a single block to commence on a date specified by the employee.

EU parental leave

In addition, from March 2013, the Government will increase unpaid parental leave from 13 to 18 weeks in order to comply with the revised EU Parental Leave Directive. In 2015, it will 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.

Comment

While much of today’s news comes as no surprise, given manifesto commitments and similar proposals contained in a previous Government consultation, it will be challenging for employers to make these changes work in practice. Many will already be looking for the administrative details behind the proposals, including notification arrangements, how they will be able to accommodate blocks of leave, the impact on enhanced occupational schemes (including the potential for discrimination claims from men who are denied enhanced maternity benefits available to women) and more. The Government has said it will consult on the details in 2013. Given the 18 month delay from the initial consultation on flexible parental leave to today’s announcement, employers will be looking for more rapid progress in this next stage in the consultation, in order to give them sufficient time to make the fundamental changes needed ahead of 2015.

Read the Government’s announcements here