The new EU Work-Life Balance Directive, which brings in new rights for carers and working parents, must be implemented in all EU member states by the middle of 2022. This article outlines what the directive means for UK employers.
The directive originates from the EU Commission's unsuccessful attempts to improve maternity rights across the European Union. Currently, EU law provides for 14 weeks' maternity leave. For many years, the commission tried to persuade member states to increase this amount but no agreement could be reached either on a new maternity leave period or the level at which it should be paid. Eventually, in an effort to break the political deadlock, the commission withdrew its proposals for maternity leave reform and launched a new set of proposals designed to modernise the existing EU legal framework on family leave and flexible working. The result is the new EU Work-Life Balance Directive, which has just been adopted and must be implemented by member states by the middle of 2022.
The new directive reflects increasing calls for fathers to take up their share of parenting responsibilities and a growing concern about the European Union's ageing population and its future demand for informal care. The proposed introductory text to the directive states that "work-life balance policies should contribute to the achievement of gender equality" and explicitly acknowledges that:
in the light of the challenges that arise from demographic change, together with the resultant pressure on public expenditure in some Member States, the need for informal care is expected to increase.
As with the EU Transparent and Predictable Working Conditions Directive, which was adopted at the same time, the outcome of Brexit negotiations will determine whether the directive needs to be implemented in the United Kingdom.
In the event of a hard Brexit, it can be assumed that the United Kingdom would not need to comply, but it could have been obliged to do so under Theresa May's proposed withdrawal agreement and it could potentially choose to do so as part of a commitment to keep pace with EU employment rights.
The directive introduces the following key new rights:
- Fathers and equivalent second parents will be able to take at least 10 working days of paternity leave, paid at least at the level of sick pay. Member states can make paternity pay subject to a six-month service qualification, but paternity leave itself will be a day one right.
- There will be a strengthened right to parental leave. EU law already provides a right to four months' unpaid parental leave but, under the new directive, two out of the four months' parental leave will become paid and non-transferable from one parent to the other. Member states can decide the level of pay but it must be set to facilitate the take-up of parental leave by both parents. Workers will be able to request to take parental leave in flexible ways (the introductory text refers to requests to take the leave on a part-time basis, in chunks of leave separated by periods of work or in other flexible ways).
- The directive will introduce a five days carers' leave per year. This will be unpaid, although the commission had originally proposed the right to paid leave. A 'carer' for these purposes means a worker providing personal care or support to a relative or person living in the same household who needs significant care or support for a serious medical reason. This will be defined in more detail by member states.
- The directive will extend of the existing right to request flexible working arrangements to all working parents of children up to at least eight years old and all carers. Member states can impose a six-month service qualification. Workers will have the right to request temporary flexible working arrangements and the right to revert to their original working pattern at the end of the temporary period.
Member states will have three years to implement the new rights but are allowed an additional two years (ie, five years in total) to bring in the right to pay for the last two weeks of paid parental leave.
As explained above, the United Kingdom may not need to implement the directive. However, if the United Kingdom does need to comply (or if it chooses to do so), it will need to make the following changes to its existing family leave and pay framework:
- The United Kingdom already provides a right to paternity leave and pay, but both rights are currently subject to a six-month service requirement. To comply with the directive, the service requirement for paternity leave (although not pay) would need to be scrapped.
- The United Kingdom provides a right to non-transferable parental leave for each parent until the child is 18 years old, but this leave is entirely unpaid. The United Kingdom also provides shared parental leave, some of which can be paid. If the United Kingdom had to comply with the directive, it is unclear what would happen to the existing shared parental leave scheme. The directive's proposed introductory text emphasises that any kind of family-related leave should count towards the new rights and that member states would not need to rename or change their existing schemes. However, some changes to the United Kingdom's shared parental leave scheme would be required, assuming that the United Kingdom wanted to retain it. For example, shared parental leave is available only when the mother exchanges some of her maternity leave for it. However, under the directive, each parent would have an independent right to take paid parental leave.
- There is no existing right to carers' leave in the United Kingdom, so this would need to be introduced.
- The United Kingdom already gives all workers the right to request flexible working after six months' service (this is not restricted to parents or carers). There is no rule against requests for temporary arrangements, although no explicit right to request them, so it is possible that the position would be made clearer if the United Kingdom had to comply with the directive.
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