In an attempt to encourage an engaged, motivated workforce, the Government consulted with stakeholders last year over a number of proposals, designed to create a flexible, efficient and fair labour market. The consultation closed in August 2011. The Government has now published its response in relation to two of the proposals. It has confirmed plans to radically reform the rules relating to flexible working requests and to parental leave following the birth of a child.
In its response to the consultation, the Government has indicated that, at present, there is a cultural belief that flexible working is only of benefit to parents and carers (and, consequently, the benefit only really extends to women as they are statistically more likely to be responsible for such duties). It wants to change this belief and to persuade business of the benefits of flexible working.
The current regime allows employees with children under 17 (or under 18, if the child has a disability) and those who care for adults in certain circumstances to request to work flexibly. The procedure for considering the request is quite technical.
The Government has confirmed that all employees with more than 26 weeks' continuous employment will be entitled to request to work flexibly, providing they have not made another request within the previous 12 months.
The technical procedure will be abolished, and will be replaced with a duty on the employer to act reasonably in considering the request and to respond within a reasonable timeframe. Guidance will be given on what 'reasonable' may mean in these circumstances, as well as to how to prioritise conflicting requests. Although part of the original proposal, micro businesses will not be exempt from this procedure, and implementation is likely to take place by 2014.
Crucially, the proposals do not change the fundamental principle of the current entitlement: the right is a right to request, not a right to work flexibly.
Flexible Parental leave
When the Government introduced the concept of additional paternity leave, it indicated that this would be a temporary measure while more radical proposals were developed, designed to encourage men to take more responsibility for childcare and thereby to remove one of the main barriers facing women in their career progression.
The Government has now confirmed that it intends to introduce a concept of shared parental leave. This does not dilute a woman's right to take maternity leave. She will still be entitled to take 52 weeks' leave and to receive 39 weeks' statutory maternity pay (subject to the same qualifying criteria as currently apply). However, if she wishes, she can share this leave with her partner (providing each of them qualify in their own right to participate in the flexible leave system).
Therefore, after the period of compulsory maternity leave (the first two weeks following childbirth, or four weeks if the mother is a factory worker), the partner and the mother can share the remainder of the leave. They can take it concurrently together or consecutively, in blocks of one week and can, with the agreement of their employer, dip in and out of the leave. If no agreement can be reached about stopping and starting leave, an employee is entitled to take a single block of leave and to nominate the date on which they will start it. The Government therefore encourages employers and employees to start discussing plans as far in advance as possible.
The Government has confirmed that it does not believe that employers will have to extend any rights to enhanced maternity pay to men taking flexible leave under the new system.
Additional paternity leave will be abolished when the new provisions take effect. Fathers will be entitled to attend two antenatal appointments (but will not be entitled to be paid for these).
The rules relating to unpaid parental leave will also change. This currently allows employees to take up to 13 weeks' leave per child, provided they do so before the child's 5th birthday (or 18th birthday if the child is disabled, or five years after the child was placed for adoption, if applicable). From March 2013, the period of leave will increase to 18 weeks (to comply with an EU directive) and from 2015, the leave may be taken up to the child's 18th birthday.
Adoption leave and pay will be changed, giving adoptive parents the same entitlements as natural parents. Surrogate parents will also be entitled to these rights.
These changes are part of an ambitious plan. They are designed to engender (in the words of the World Bank) 'smart economics', where business benefits from the balanced participation of men and women in the workplace. If they can assist in the retention of talent, the career progression of women and the removal of stigma attached to men wishing to take primary responsibility for childcare, it can only be a good thing.
However, it remains to be seen whether there will be a significant uptake in the proposals. We are rarely asked to advise on issues of additional parental leave or unpaid parental leave, and suspect that these rights are rarely exercised. In effect, the new proposals could be seen to be no more than extensions of existing rights. This may prove to be of comfort to those businesses which have expressed concerns at the administrative burdens the proposals will place on them.