Before the formation of the Coalition Government, both the Liberal Democrats and the Conservatives stressed the importance of family-friendly policies. The Conservatives in particular stated in their manifesto that it was their goal to make Britain "the most family-friendly country in Europe". In this edition of Employment Matters we will consider the current law on work and families, current developments and the Coalition Government's plans for the future.

Current law

Maternity

Currently the law provides that expectant mothers are entitled to the following:

  • Up to 52 weeks' maternity leave, made up of ordinary maternity leave (OML) of 26 weeks and additional maternity leave (AML) of a further 26 weeks, regardless of length of service. There is a compulsory minimum period of maternity leave of 2 weeks from the date of childbirth (4 weeks if the individual works in a factory) during which an employee may not work for her employer.
  • Statutory maternity pay (SMP) for up to 39 weeks, provided the employee has 26 weeks' continuous employment. The rate of SMP is currently 90% of the employee's average earnings for the first 6 weeks, and the prescribed rate of £124.88 per week for the remainder of the maternity leave.
  • The right to return to the same job. An employee is generally entitled to return to the same job as if she had not been absent following OML. However if, following AML, there is some reason why this is not reasonably practicable she may return to an appropriate other job with as favourable terms and conditions.
  • Priority for alternative employment in redundancy cases. An employee on maternity leave is entitled to be offered a suitable alternative vacancy (where one is available) if a redundancy situation arises.
  • Protection from dismissal, detriment or discrimination by reason of pregnancy or maternity. An employee who is made redundant during OML or AML may have claims for automatic or ordinary unfair dismissal or discrimination because of pregnancy, if she can establish a link between the dismissal and the pregnancy/childbirth. Employees that are dismissed at any time whilst pregnant or on maternity leave must be provided with a written statement of the reasons for the dismissal without having to request it. If an employer fails to do this a tribunal may order them to pay compensation of two weeks' pay.
  • Health and safety protection while pregnant and breastfeeding.
  • Time off for antenatal appointments. All pregnant employees have a statutory right to reasonable paid time off during working hours "for the purpose of receiving ante-natal care".

Paternity

Employees that are the father or the spouse, civil partner or partner of the mother and have been continuously employed for 26 weeks are entitled to either one whole week or two consecutive weeks' statutory paternity leave (SPL). They are also entitled to statutory paternity pay (SPP), currently £124.88 (or 90% of normal weekly earnings if lower) for up to two weeks. Both must be taken within 56 days from the date of childbirth. As with statutory maternity leave, the employee's contractual benefits continue during SPL and they have the right to return to the same job.

Adoption

Statutory adoption leave (SAL) can be taken by qualifying employees who adopt a child under 18 provided, if the child is being jointly adopted by two people, that the other adopter is not taking adoption leave (whether from the same or another employer). Employees that have completed 26 weeks' continuous service and are newly matched with a child for adoption by an adoption agency are entitled to 26 weeks' statutory adoption leave, and can also take a further unpaid 26 weeks' leave.

If two people are jointly matched for adoption with a child, they must decide between them who will take adoption leave. The other person can take paternity leave (whichever sex they are) if they qualify for this.

Employees on SAL who earn at least the lower earnings limit can receive up to 39 weeks' statutory adoption pay, which is payable at the same rate as the "prescribed rate" for statutory maternity pay, or at 90% of normal weekly earnings if lower. As with maternity and paternity leave, an employee on SAL has the right to return to the same job and receive the same contractual benefits.

Parental leave

Parental leave is unpaid leave which is available in addition to statutory maternity, paternity and adoption leave. It can last up to 13 weeks (18 in the case of a disabled child) and, unlike maternity, paternity or adoption leave, can be flexible in terms of when and how it is taken.

Parental leave may be taken at any time before the child's 5th birthday (or the 5th anniversary of the date of placement) or before the child's 18th birthday if the child is entitled to disability living allowance. The right applies in respect of each child, so an employee with two children would be entitled to 26 weeks' unpaid leave in total.

To take parental leave an employee must, at the time the leave is to be taken, have been continuously employed for at least one year and have, or expect to have, responsibility for the child.  

Right to request flexible working

An employee may request a change to the hours they work, the times when they are required to work and/or to work from a different location, provided that they have at least 26 weeks' continuous employment and have not made another application to work flexibly in the last twelve months.

There is a statutory procedure whereby the employee must submit a written application and discuss it with their employer at a meeting before a formal decision is made. Should an employer suspect abuse of the right to request flexible working, they do not have a statutory right to request evidence of the employee's eligibility; however they can still request evidence informally or invoke the company's disciplinary procedure if necessary

Time of for dependants

All employees are allowed to take a reasonable amount of unpaid time off work to deal with certain unexpected or sudden emergencies involving a dependant and to make any necessary longer term care arrangements. Dependants include a spouse, civil partner, child or parent, or a person who lives in the same household. Time can be taken off:

  • if a dependant falls ill, is injured, gives birth, or dies;
  • if there is an unexpected disruption or termination of childcare arrangements; or
  • if there is some other unexpected incident involving the employee's child during school hours.

Future developmentsAdditional Paternity Leave Regulations

The Coalition Government's programme states that they "will encourage shared parenting from the earliest stages of pregnancy – including the promotion of a system of flexible parental leave". It is not yet clear what this means in practice or when it will be implemented. A consultation that is likely to include details of a parental leave system that encourages shared parenting will be published later this year.

In the interim, the Additional Paternity Leave Regulations will go some way to encourage shared leave. The Government has announced that it plans to retain the Regulations, which will apply to parents of children due to be born or placed for adoption from 3 April 2011.

The Regulations will allow eligible employee (usually fathers) to take up to 26 weeks' APL before the child's first birthday, if the employee's spouse, civil partner or partner has returned to work with some of their statutory maternity/adoption leave untaken. The employee can take APL from 20 weeks following the birth of the child or the placement for adoption.

It is planned that additional statutory paternity pay will be paid at the same rate as statutory maternity pay (currently £124.88 a week, or 90 per cent of normal weekly earnings if lower) if the leave is taken during the 39-week maternity pay period.

The Regulations will allow women to transfer the last six months of maternity leave to men and are intended to create more family friendly workplaces and give parents greater choices over childcare responsibilities. It will be interesting to see if men take this up.

In the recent Spanish case of Roca Álvarez v Sesa Start España ETT SA the Court of Justice of the European Union suggested that fathers who take additional paternity leave (APL) from April 2011 could qualify for the same enhanced benefits as their employer would pay to a woman on additional maternity leave (AML). The Court held that, in applying a parental leave scheme differently to men and women, the Spanish employer had discriminated on the grounds of sex. The employer had allowed all employed mothers to be eligible for the leave, but employed fathers were only entitled if the child's mother was also employed (by the same or another employer).

The ruling suggests that once the APL Regulations come into force next April, employers that offer enhanced benefits to women on additional maternity leave will have to offer the same enhanced benefits to employees on additional paternity leave. Some employers have already decided that when the law changes next year they will offer the same benefits to men on additional paternity leave as they do to women.

Expansion on flexible working

The Government has announced that the right to request flexible working will be extended to parents of children under 18 years old from April 2011. A consultation on extending the right to request to all employees will be published later this year. Employment Relations Minister Edward Davey described the plans to be contained in the consultation as 'much more ambitious'.

Draft EU law to extend maternity leave to 20 weeks on full pay

MEPs have voted in favour of a number of measures designed to strengthen maternity protection, including extending maternity leave to 20 weeks on full pay. The proposals must now go for approval by the EU countries, and include banning employers from dismissing pregnant workers in the six months following their maternity leave, as well as prohibiting pregnant workers doing night work or overtime in the ten weeks prior to childbirth and whilst breastfeeding.

UK business leaders and Conservative MEPs have lobbied against the 20-week proposal which, it has been reported, could cost UK businesses an extra £2.5bn a year. However, the plans do not currently seek to prevent UK employers from recovering some or all of the statutory maternity payments they make from HMRC.

Recent case law

The EAT has given guidance on the right of employees on maternity leave who are in a redundancy situation to be offered a 'suitable available vacancy'. The EAT held that the suitability of a vacancy is to be assessed by the employer, having regard to the employee's personal circumstances and work experience.

Simpson v Endsleigh Insurance Services Ltd and ors

The EAT have held that speculation about the paternity of a baby that a woman was expecting amounted to sex discrimination, pregnancy discrimination and harassment under the Sex Discrimination Act 1975. This was despite the fact that the claimant had triggered speculation by her behaviour at an office party.

Nixon v Ross Coates Solicitors and anor

The European Court of Human Rights has decided that a Russian military law which gave only women the right to three years' parental leave was discriminatory against men and in so in breach of Article 14, the right to not be discriminated against. The difference in treatment could not be justified by reference to the special role of mothers in the upbringing of children, as the court regarded both parents as "similarly placed" to look after children. The ruling highlights the need for member states to ensure parental leave schemes are not discriminatory and so compatible with Article 14. The decision may pave the way for challenges of the UK's implementation of shared parental leave on human rights grounds.

Konstantin Markin v Russia 3078/06