Today, the Government has published the Children and Families Bill, which will overhaul the rights of parents to take time off work.  The Bill, which received its first reading in the House of Commons yesterday, will also extend the right to ask for flexible work arrangements to all employees, not just parents and other carers.

Shared parental leave

With regard to shared parental leave, the Bill itself does not set out the detail employers are keen to see; instead it contains powers for government ministers to draw up detailed regulations in due course. The changes are anticipated to take effect in 2015.  By way of a reminder, the key features of the new scheme are as follows:

Under the new regime, the mother of a new baby will still be entitled to 52 weeks’ maternity leave and 39 weeks’ statutory maternity pay.  However, at any point more than two weeks after the birth she will be able to convert any remaining maternity leave and pay into ‘shared parental leave’. This new type of leave and pay will be available for the two parents to share, taking it in turns or taking time off together, although only employees with at least 6 months’ service will qualify.

Unlike the current arrangements for additional paternity leave, the mother will not have to return to work in order for the remaining leave to become flexible parental leave and nor will her partner have to wait until the baby is 20 weeks old before taking leave. The mother will have to notify her employer of the date on which she plans to end maternity leave, and the balance will then become available for her and her partner to take as ‘shared parental leave’ (provided due notice has been given to her partner’s employer).

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 each will take. 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. If agreement can’t be reached, the leave will default to a single block beginning on a date specified by the employee.

Paternity leave will remain at two weeks but will be reviewed in 2018.

Adoption

The Bill will bring adoption leave 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.

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

The Bill also contains new rights for adopters to take paid time off, pre-placement, for adoption meetings.  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. 

Time off for ante-natal appointments

Fathers and partners of pregnant women will be given a right to take unpaid leave to attend two antenatal appointments.

Surrogate parents

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.

Flexible working

The changes to the right to request flexible working are contained in the Bill.  The intention is to introduce the flexible working changes in 2014 at the earliest.

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. 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.

The current statutory procedure through which employers consider flexible working requests will be replaced 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.

Comment

The new form of shared parental leave marks a bold move away from the current highly gender-based and inflexible approach to parental leave, giving fathers much greater scope for taking extended leave after their baby’s birth.  Under current regulations, fathers can take two weeks’ leave around the time of birth; they can then take a further 26 weeks’ leave but only when the baby is 20 weeks old, and even then, only if the mother has returned to work.  Under the new legislation parents will have much greater choice over how and when they take parental leave.

The changes will not be universally welcomed, however.  It is less than two years since the last major change in this complicated area of law took effect and few employers will look forward to yet another overhaul. One particularly complex issue will be how the new rules affect enhanced maternity pay schemes that are offered by many employers, and, in particular, whether equivalent enhancements will have to be offered to men who take flexible parental leave.

Employers will now be waiting to see the administrative details behind the proposals, including notification arrangements for example, in order to give them sufficient time to make the fundamental changes needed ahead of 2015.

As for the plan to extend the right to request flexible working to all employees, this divides employers, with some strongly supportive and others feeling that the extension is a step too far. Most will welcome the move away from a rigid timetable for considering requests, but concerned employers worry about how to deal with multiple and competing requests when not all can be accommodated. And although employees only have the right to ask their employer to consider flexible work arrangements, a decision to refuse a request can in some cases lead to claims of discrimination.