17 December 2012

Continued Employment Law reforms: System of flexible parental leave

Continued Employment Law reforms: System of flexible parental leave

Last month, Deputy Prime Minister, Nick Clegg announced that, from 2015, the UK will have a new system of flexible parental leave and the right to request flexible working will extend to all employees from 2014.

The Government's Modern Workplaces response on flexible parental leave states that:    

• The default position in respect to maternity leave will remain at 52 weeks;  
• Fathers will continue to be entitled to two weeks' paid paternity leave;   
• Up to 50 weeks of the maternity leave can be taken as flexible parental leave, if the mother returns to work. The remainder of any maternity leave can be shared between the mother and her partner. If the mother notifies the employers in advance of her early return then the balance of the leave can be taken by the parents together, providing that the joint amount of time taken by both parents does not exceed 12 months in total and no more than nine months paid.  
• Each parent must meet the qualifying criteria for leave and pay and the said criteria's are likely to mirror the current ones (for maternity and paternity leave and pay).  
• Flexible parental leave must be taken in minimum one-week blocks. Individual work patterns must be agreed with employers. Where agreement cannot be reached, the leave defaults to a single block to commence on a date specified by the employee.  
• A new right for men take unpaid leave to attend two ante-natal appointments.  
• Parents adopting will be eligible for the new flexible parental leave on equal terms, thus ensuring (amongst other things) adopters are not financially worse off.  
• Intended parents of a child through surrogacy arrangements who meet the criteria to apply for Parental Order (legal document which reassigns parenthood to the intended parents) will be eligible for statutory adoption leave and pay and flexible parental leave, providing the qualifying criteria is met. Further, they will also be eligible for unpaid leave to attend two ante-natal appointments.  
• Unpaid parental leave will increase in March 2013 from 13 to 18 weeks to comply with the EU Parental Leave Directive and the age limit on parental leave will increase from 5 to 18 years in 2015. This will mean that each parent is entitled to the right of up to 18 weeks unpaid parental leave for each child under 18.

The government will launch a consultation considering how the new system of flexible parental leave will work in the New Year.

Changing the flexible working right

Currently only parents with a child under 17 years old (or 18 years old if the child is disabled), are able to request flexible working patterns. The Government's response on extending this right to all employees states that:

• The existing 26 week qualifying period of continuous employment will be retained; 
• The current statutory procedure by which employers consider flexible working patterns will be replaced with a duty to deal with requests in a reasonable manner, and within a 'reasonable' period of time. ACAS will produce a code of practice which will deal with the meaning of 'reasonable'; this is envisaged to be implemented in 2014;  
• ACAS is to produce guidance on the interaction of discrimination legislation with flexible working rights and how the existing business reasons for refusing a request can help an employer in handling competing requests;  
• The Government will work with business to promote flexible working;  
• The number of requests will continue to be limited to one within a 12 month period. Employers will be supported with best practice guidance in the new code of practice on how to handle temporary changes to work patterns and  
• The new right will apply to all businesses regardless of their size. 

Conclusion:

The new changes in respect of the flexible parental leave have been proposed with good intentions, to assist women in maintaining their career after having children and allowing men to play a greater role in raising their children. The Government believe that this will increase the diversity of leaders, improve our economy and bring us in line with the ideology of the Twenty-first century. Let's hope it works!

There are however concerns that the new proposals may cause conflict between employers and their employees, especially employers where management time is already at full capacity. These concerns might be premature as we are yet to receive the detail to the proposals.

Further, we are yet to receive the remaining element of the delayed response to the 'Modern Workplaces' consultation, on reforming the Working Time Regulations in light of ECJ decisions. No doubt there will be more surprises for 2013!