New Maternity & Paternity leave proposals

The Deputy Prime Minister Nick Clegg has set out the Government’s radical reforms to allow both parents to share up to a year’s leave to look after their new-born child(ren), from 2015. The Government also intends on legislating to extend the right to request flexible working to all employees from 2014.

Flexible parental leave

The proposals for a new system of flexible parental leave and pay are intended to encourage fathers to take a greater role in raising their children, help mothers to return to work at a time that is right for them, and create more flexible workplaces to boost the economy.

The Government’s “Modern Workplaces Response” on flexible parental leave provides that:

• 52 weeks of maternity leave will remain the default position for all employed women
• fathers will remain entitled to two weeks’ paternity leave and pay
• if the mother returns to work before the end of the 52-week period, up to 50 weeks of untaken maternity leave can be taken as flexible parental leave, to be shared by the woman and her partner. If the mother notifies in advance that she will return early then the balance of the leave may be taken by the parents concurrently however, no more than 12 months can be taken in total with no more than nine months paid
• each parent will need to meet the qualifying criteria for leave and/or pay in their own right. Where possible, these qualifying criteria will mirror the criteria for existing entitlements such as maternity pay and allowance and paternity pay and leave
• flexible parental leave must be taken in a minimum of one-week blocks. After agreement between parents on how the leave should be taken, they must agree their individual pattern of leave with their employer. If the proposed pattern cannot be agreed, the leave defaults to a single block to commence on a date specified by the employee;
• a new right will be created allowing men to take unpaid leave to attend two ante-natal appointments
• parents who adopt will be eligible for the new flexible parental leave on equal terms with biological parents, ending discrepancies which mean, among other things, adopters are financially worse off;
• intended parents of a child born through a surrogacy arrangement who meet the criteria to apply for a Parental Order will be eligible for statutory adoption leave and pay and for flexible parental leave and pay if they meet the qualifying criteria. They will also be eligible for unpaid time off to attend two ante-natal appointments
• unpaid parental leave will increase in March 2013 from 13 to 18 weeks in order to comply with the revised EU Parental Leave Directive (No. 2010/18)
• the age limit on parental leave will increase from 5 years to 18 years in 2015, providing each parent with the right to up to 18 weeks’ unpaid parental leave for each child under 18.

Right to request flexible working

At present, any parent with a child under 17, or under 18 if the child is disabled, qualify to make an application for flexible working. The Government intends on extending this right to include the following:

• the right to request flexible working will be extended to all employees
• the current statutory procedure under which employers consider flexible working requests will be replaced with a duty to deal with requests in a reasonable manner, and within a ‘reasonable’ period of time
• the existing 26-week qualifying period of continuous employment will be retained
• the number of requests within a 12-month period will continue to be limited to one, but employers will be supported with best practice guidance in the new code of practice on how to handle temporary changes to working patterns
• the right to request flexible working will apply to all businesses regardless of their size.

So, what do these proposals mean for employers?

New entitlements in terms of flexible parental leave is expected to allow both parents to keep a strong link with their workplace, helping employers to attract and retain women in their organisation. Employers will consequently benefit from being able to make the most of their entire talent pool.

There is however concern that the right to request flexible working for all employees could prove to be challenging to employers, particularly those who operate a shift system, which are difficult to manage where employees are working on a flexible basis. In addition to this, there will be extensive administrative detail behind the proposals, including notification arrangements, accommodating blocks of leave and the impact of enhanced occupational schemes (including potential for discrimination claims from men who are denied maternity benefits). It is however expected that the Government will work with businesses to promote these proposals, as evidence suggest that flexible working creates a productive and motivated workforce, saves employers money from reduced absenteeism and lower turnover costs, and allows them to retain highly skilled staff.

The Government plans to legislate on these proposals next year, so watch this space.

For more information please contact David Hacker.