The Government has revealed plans to give all employees the right to request flexible working. As it stands, only parents and carers may make a flexible working request. This is set to be extended to all employees with 26 weeks’ service. In addition, the Government has released proposals for shared parental leave aimed at promoting greater equality in the workplace. Speaking about the recent announcements, Nick Clegg said; “I’m 45, I’ve got three young children. I know lots of people of my generation who are desperate to get more involved, but the rules prevent them.”
Currently mothers are entitled to take up to 26 weeks’ ordinary maternity leave and a further 26 weeks’ additional maternity leave, giving a total entitlement of 52 weeks’ statutory maternity leave. The first 39 weeks are paid (33 weeks being at the relatively nominal rate of £135.45 after the first six weeks at 90% of average weekly earnings) and the remaining 13 weeks are unpaid, although some companies may offer more generous packages.
Fathers can take 2 weeks’ ordinary paternity leave and subject to qualifying criteria, including the mother returning to work, additional paternity leave for up to 26 weeks.
Unpaid parental leave can be taken after one year’s employment and each parent is entitled to 13 weeks’ unpaid parental leave per child. This can be taken between the child’s birth and fifth birthday. No more than four weeks’ leave can be taken in any one year and leave must be taken in one-week blocks.
From 2015, the UK will have a new system of flexible parental leave. To avoid confusion this actually represents further rights for parents to decide how to split what was previously a mother’s entitlement to maternity leave. The 52 weeks of maternity leave will remain in place, as will the two week period of compulsory maternity leave, which applies from the day of the child’s birth. The new system will allow parents to share between them up to 50 weeks of leave and 37 weeks of pay. The mother will be able to end her maternity leave, or commit to ending it at a future date, and share the untaken balance of maternity leave and pay as flexible parental leave and pay. The flexible approach will enable mothers to return to work before the end of their maternity leave without sacrificing the rest of the leave. Parents will have to take the parental leave in a minimum of one-week blocks, with no more than 12 months taken in total.
The right to request flexible working will apply to all employees from 2014. Although the existing qualifying period of 26 weeks will still stand, employers will have a duty to deal with requests in a reasonable manner and within a reasonable period of time. Flexible working may include a reduction in an employee’s working hours or working from home.
The Government’s hope is that these “radical reforms” will promote working families and give mothers the option to continue with their careers into motherhood. With 1 in 5 women earning higher salaries than men, the shared parental leave could prove financially advantageous for some couples. The Government has estimated the net benefit to employers of extending flexible working could be around £222.5 million as a result of reduced sickness, absenteeism and recruitment. The Government hopes the proposals will de-stigmatise flexible working and encourage a culture shift in the workplace.
The proposals may create challenges for employers. As the shared parental leave can be taken concurrently or in blocks of one week, businesses may face practical issues in planning for absences. Difficulties will arise where the parents’ proposed timetable of shared leave does not match the business needs. Employers should consider reviewing their paternity leave policies to give men taking part of the mother’s maternity leave equivalent entitlements to those a woman would have enjoyed to enhanced maternity pay. A failure to provide equivalent benefits will result in a risk of discrimination claims from male employees.
Employers will also need to think carefully when responding to flexible working requests from fathers. Now fathers can share parental leave, there may be a rise in discrimination claims if men consider their employers treat them less favourably than women.
It remains to be seen whether there will be a significant uptake in the proposals. The proposals have the potential to create practical difficulties in the workplace and only time will tell how effectively businesses are able to deal with these.
Richard Nicolle is a Partner in the Employment Law Group at SNR Denton UK LLP