Since Labour came into office in May 1997 there has been a focus on family friendly measures aimed at helping workers strike a balance between work and home. This has meant employers need to keep abreast of a continuing stream of legislation and case law in this area, which continues unabated.

More maternity and paternity rights

The rules covering non-cash benefits during maternity leave have changed for women with an expected week of childbirth (EWC) starting on or after 5 October 2008.

For women with an EWC before 5 October 2008, the obligation to provide non-cash benefits continues only for the duration of ordinary maternity leave (the first 26 weeks). Under the changes, employers have to provide non-cash benefits for the whole 52-week maternity leave period (i.e. ordinary plus additional maternity leave). For more information as to what this means particularly for pension contributions and salary sacrifice schemes, see our employment alert of 2 October, Maternity leave and non-cash benefits – what's changed.

The Government has already announced its intention to extend statutory maternity pay to cover the whole 52-week maternity leave period together with the introduction of additional paternity leave "before the end of this Parliament". No specific date has yet been announced and the final details of the proposed additional paternity leave and pay regulations are still awaited. The current expected implementation date is April 2010.

It's not just the UK Government that's been busy. European level developments are also taking place. The European Commission has published proposals for a revision of the Pregnant Workers Directive. Many of the proposals should not impact on the UK as domestic legislation is already compliant. However, two proposals may have an impact:

  • Increase compulsory maternity leave to six weeks: Compulsory maternity leave (the period immediately following birth where a woman cannot return to work) is currently two weeks (four weeks for factory workers). The Commission is proposing to extend this to six weeks. This could lead to increased costs for employers in relation to, for example, bonus payments. For contractual bonuses, an employer can reduce pro rata a bonus for absence due to ordinary and additional maternity leave but not due to compulsory maternity leave.
  • Women to receive maternity pay equivalent to their normal salary for 18 weeks: Currently, the minimum period of maternity leave required under the Pregnant Workers Directive is 14 weeks and it is proposed that this be extended to 18 weeks. In the UK, women are of course already entitled to up to 52 weeks' leave.

What may have an impact is a recommendation that women be paid 100% of their salary for 18 weeks. Member states will be able to set a ceiling on the level of maternity pay in the 18-week period of 'at least the level of sick pay'. However, it's not entirely clear what the Commission means by 'sick pay'. If, as is likely, member states can cap pay at the level of statutory sick pay this would have no effect on the current UK provisions as statutory maternity pay already exceeds the statutory sick pay cap. If, however, the proposal means contractual sick pay, some employers could face increased costs.

The Commission hopes to have agreement on the proposals by 2009 with a two-year implementation period.

The European Commission also launched a review in September of the provisions in relation to parental leave due to be completed within (rather appropriately) nine months.

Thereafter the Commission intends to review other forms of family leave such as paternity, adoption and filial (care for dependant family members).

More flexible working requests

The Government is consulting on its proposal to extend to parents of older children the right to request flexible working. Currently, the right is restricted to parents of children under six (or disabled children under 18), and carers of adult dependants.

Accepting the recommendations of the Walsh review published in the summer, the Government plans to extend the right to parents of children aged six to 16 inclusive. (Interestingly, this leaves a gap in relation to those aged 17 who are not disabled.) The consultation is open until 18 November.

Time off for care of dependants

Since December 1999, all employees are entitled to a reasonable amount of unpaid time off to take 'necessary' steps to deal with the 'unexpected' disruption or termination of arrangements for the care of a dependant. They are protected against dismissal or suffering a detriment as a result. Until recently there has been relatively little case law on this right.

We now have EAT guidance on what 'necessary' and 'unexpected' mean.

In Royal Bank of Scotland (RBS) v Harrison, the employee was told on 8 December that her childminder was unavailable for 22 December. On 13 December 2006 she asked her employer for the day off because of the unexpected disruption. She did all she could to make alternative care arrangements but was unsuccessful. She was not allowed the day off and was disciplined when she stayed at home to look after her children.

The tribunal had to decide whether it was 'necessary' for her to take the time off on 22 December 2006 because of 'unexpected disruption' in her childcare arrangements. RBS argued that the right applied to true emergencies only and not where the employee had advanced warning of the disruption.

The tribunal and EAT both found in Mrs Harrison's favour.

  • 'Unexpected' does not mean the same as 'sudden' or 'in emergency'. It does not involve a time element.
  • The tribunal is entitled to look at the time which passes between the employee becoming aware of the risk of disruption and that risk becoming fact. That is relevant to the question whether it was 'necessary' for the employee to take that time off so that:
    • if an employee has not taken appropriate steps to make alternative arrangements, but has had sufficient time in which to do so, the tribunal is unlikely to find as a fact that it was necessary for him or her to take the time off
    • if the time which has passed between learning of the risk and the risk becoming fact is very short, it will be easier for the employee to establish that it was necessary for her to take the time off, but there can be no hard and fast rules.
  • Relevant factors for a tribunal when considering necessity will include the nature of the disruption, the availability of alternatives, finance and time.

In summary, the amount of time between the employee learning of a need to take time off because of a disruption to childcare and actually taking that time off is a relevant factor in determining whether it was 'necessary' for the employee to take that time off, but does not go to deciding whether the disruption was 'unexpected'.