Woman takes maternity leave is front page news in The Telegraph

Coverage of the announcement that Marks and Spencer’s most senior female employee, Head of Multi-channel, Laura Wade-Gery, is taking maternity leave has shone a light on how rights which are taken for granted by most women cannot be assumed to be so by senior managers. The story merited sufficient significance to feature on the front page of the 19 August edition of the Daily Telegraph

The retailer was required to make a stock exchange announcement about the maternity leave under rules requiring disclosure of absence longer than a typical holiday. The announcement included notification that Ms Wade-Gery will be returning to work in early January after four months’ leave, much earlier than would be typical for maternity leave. Marks and Spencer is known for its enlightened approach to employee rights and was one of the early adopters of offering employees career breaks in addition to statutory leave entitlements.

However the lack of women in very senior appointments generally means that their rights, when balanced against their obligations to their employers and their employers’ shareholders, are less well defined. During her absence cover will be provided by a director of retail and a director of M&S.com, reporting directly to chief executive Marc Bolland.

The Telegraph article highlights that Belinda Earl, M&S style director was the first ever chief executive of a leading public company to go on maternity leave, taking six weeks when she was head of Debenhams in 2001.

The comments below the online version of the article demonstrate that there is still, to put it mildly, a lack of awareness and tolerance of womens’ employment rights.

is it discriminatory not to offer a suitable vacancy to a woman selected for redundancy while on maternity leave?

The case of Wainwright v Sefton Borough Council was initially heard by Employment Judge Robinson in the Employment Tribunals in Liverpool in September 2013. His judgment was that Mrs Wainwight’s claims of automatic unfair dismissal, breach of regulation 10 of the Maternity and Paternal Leave Regulations 1999 (right to be offered suitable alternative jobs) and direct sex discrimination all succeeded.

In November 2010 the Authority was planning redundancies (as it is again now). The process continued into 2012/13. Mrs Wainwright had worked for the Authority since 2001, latterly as Head of Overview and Scrutiny. From July 2012 to July 2013 she was off work on her third period of maternity leave. As part of the restructure a new post was created – Democratic Services Manager. This combined Mrs Wainwright’s existing role with the post of Head of Member Services, held by  a Mr Steve Pierce. Both were placed at risk of redundancy and both were interviewed for the new post in December 2012. It was decided that Mr Pierce was the better candidate and he was offered the new job. As a result, in January 2013, Mrs Wainwright was given three months’ notice of redundancy, which took effect on 15 April 2013.

The new post was a suitable alternative vacancy but it appeared that there were no others at the time. The Council maintained that Mrs Wainwright was not entitled to special treatment under Regulation 10 until the decision was taken about who was the best candidate for the Democratic Services Manager role. However the Tribunal took the view that the right to be offered the vacancy arose when the redundancy situation affecting her job became known and was extinguished either when the appointment took effect or when the maternity leave ended. The Tribunal also took the view that the Regulation 10 right was absolute – where there is a suitable vacancy it has to be offered to the employee on maternity leave. Failure to do so made the resulting dismissal automatically unfair and was direct sex discrimination. Judge Robinson’s reasoning was based on him holding that Mrs Wainwright’s job was no longer available when she was put at risk in July 2012.

On appeal, there were two main grounds.

– Breach of Regulation 10 was not direct discrimination. Instead, Regulation requires more favourable treatment whereas there can be no direct discrimination unless there is unfavourable treatment.
– It was an error to conclude that Regulation 10 applied before the interviews for the Democratic Services Manager role.

discrimination, appeals and returning to work after maternity leave

A Ms Little joined Richmond Pharmacology in 2006 as an evening receptionist. In 2009 she was promoted to the post of full-time sales executive. Richmond operates in a highly competitive marketplace, relying on personal contacts and dealing with the running of pharmaceutical trials.
In September 2009 Ms Little went on maternity leave prior to the birth of her second child. As is often the case in such circumstances she applied for a flexible working arrangement on her return to work in August 2010, specifically Monday to Wednesday, 9.00 a.m. to 3.00 p.m. and remote access when she was at home on Thursdays and Fridays. Her request was rejected on the ground that “it was not feasible for a sales executive to operate on a part-time basis”.
Ms Little appealed the decision but resigned before the appeal hearing was arranged. She was asked to reconsider her resignation until the appeal hearing could take place. The hearing took place three days later and she was offered a three-month trial on the terms she had requested. She refused and confirmed her resignation.
Ms Little brought an employment tribunal claim, alleging constructive unfair dismissal and indirect sex discrimination. The effective date of termination of employment was 19 July 2010 and the claim form was presented on 29 October 2010 so the unfair dismissal claim was out of time. The discrimination claim survived because it was “just and equitable” to allow it to proceed.
Discrimination claims can be both resisted and established on the basis that there is a relevant provision, criterion or practice (PCP) which is applied to a particular job. In this case the relevant PCP was that sales representatives must work full time. That is what she was told when she applied for flexible working. On its face such a requirement would place women at a disadvantage by comparison with men on the basis of disparate impact. However the PCP had been disapplied on appeal, at least to the extent of permitting the three-month trial. Had this “cured” the discrimination resulting from imposition of the PCP?

Shared Parental Leave

In April 2015 the government implemented new legislation to make parental leave shareable with the objective of challenging the old fashioned assumption that women will always be the parent that stays at home. It was intended to give parents the choice and flexibility in caring for their children and to help mothers who wanted to return to work early share responsibility for the care of their child. It was anticipated that the introduction of SPL would be unlikely to impact significantly given the potential financial implications, lack of career progression and women’s potential reluctance to share their leave.

Given that we are now year into the changes it seems an appropriate time to reflect on the impact that SPL has actually had. It appears that fathers have been reluctant to take advantage of the SPL rules mainly on the basis of the financial limitations. Research among 200 employers conducted by My Family Care found that 80% of employees surveyed said that the decision whether they would elect for SPL would depend on whether their employers would pay more than they were obliged to. With statutory pay for parental leave currently set to a maximum of £139.58 per week it could be that many working fathers continue to believe that it’s their duty to go out and earn the money.

Another important consideration that may be affecting the implementation of SPL is women’s reluctance to share their leave. Research suggests that 55% of women surveyed said that they would not want to. However, notwithstanding the potential limitations, the implementation of SPL can only serve to eradicate the inequalities that woman have long suffered in the workplace, by giving them the option to share their leave and combine work and family. It should enable women to carry on with their careers more easily whilst having a family.

Ordinary parental leave – an update

I was recently updating the subscription zone for our subscribers to Canter Levin & Berg Employment Solutions when I was reminded that, in addition to taking into account the new arrangements for shared parental leave there are knock on effects for what was previously referred to as parental leave.

Most of us who deal with maternity absences are familiar with the general provisions applicable to maternity leave and they are set out in detail in our subscription zone so subscribers know exactly what to do in that regard.

However, what was previously parental leave is now known as as ordinary parental leave. The main reason is to avoid confusion with shared parental leave.

From April 2015 the entitlement applies in respect of any children before their 18th birthday and the specific provisions relating to disabled and adopted children no longer apply.

The main point about ordinary parental leave is that, although the entitlement is for up to 18 weeks per child, it is unpaid. Accordingly, it is unlikely to be at the forefront of the minds of those considering their parental leave arrangements. However it should not be disregarded, particularly in terms of planning for staffing requirements.

There is still a requirement for employees to have been employed for at least one year before having the entitlement. It is also important to remember that the entitlement to shared parental leave is not contingent on ordinary parental leave – both are free standing rights. Bearing in mind that the entitlement can span a period of 18 years there will be many cases in which employers can do little more than trust that the information provided to them by their employees (particularly in respect of former employment) is correct.

shared parental leave update

Last May I mentioned that shared parental leave is on its way and now it is almost upon us. Many employers have commented that the arrangements seem to be very complicated so it is timely that both the Government and ACAS have published detailed and helpful guidance.

Shared parental leave is to be introduced from next April in respect of babies due (or due to be adopted) on or after 5 April but notices requesting leave could therefore be served as early as next January. It is therefore important for all employers to understand the scheme now and to make appropriate arrangements to accommodate the new procedures.

Detailed information is available in the ACAS Good Practice Guide. However, in summary, the key features are as follows.

We have new terminology: SPL – Shared Parental Leave, ShPP – Statutory Shared Parental Pay, Continuous Leave –  a period of leave in one block, e.g. four weeks, Discontinuous Leave – a period of leave arranged around when an employee will return to work, e.g. working every other week for three months and SPLIT day – a Shared Parental Leave In Touch Day.

SPL does not arise unless the mother reduces her maternity or adoption leave of 52 weeks. If she does then this opens up the possibility of her and/or her partner opting in to SPL and taking any remaining weeks as SPL. This means that the partner could commence SPL while the mother is still on maternity leave. For example a mother might choose to reduce the maternity leave period by 10 weeks, thereby reducing the overall period to 42 weeks. That means that 10 weeks could be used by the partner as SPL while the mother is still on maternity leave.

In a more extreme example a mother must take at least two weeks as maternity leave following the birth of a child (four weeks for manual work in a factory environment). She might choose to convert all her remaining maternity leave to SPL in which case both she and her partner could take nearly six months each as SPL at the same time. Alternatively the mother might return to work after three months and thereby give the partner nearly nine months’ SPL.

To qualify a mother must have a partner and have curtailed or given notice to reduce her maternity or adoption leave or her pay or allowance (if not eligible for maternity or adoption leave). A parent intending to take SPL must be an employee, share primary responsibility for the child, have properly notified the employer of the entitlement and to have provided the necessary declarations and evidence. In addition he or she must satisfy the continuity of employment test (at least 26 weeks at the end of the 15th week before the child’s due/match date) and the employment and earnings test (in the 66 weeks prior to the due/match date worked for at least 26 weeks and earned an average of £30 per week in any 13 weeks.

flexible work requests and flexible parental leave

I’ve mentioned pending changes to flexible work requests and flexible parental leave over the last few months and it seems that the details are now finalised. Already implemented are the following:
– The right to request flexible work is extended to employed agency workers returning from maternity/paternity leave;
– Unpaid parental leave is increased to 18 weeks for each child.
The Children and Families Bill 2013, which recently has its second reading in the Commons, implements further changes to:
– Allow parents to share maternity leave (after the first 2 weeks’ compulsory leave) as parental leave, which will be paid, subject to the same qualification rules as for maternity and paternity pay. The Department for Business Innovation and Skills has launched a consultation on how the new right will be administered, looking at issues like whether the one year period will run from the beginning of maternity leave or the birth of the child, and how employees should give notice to end maternity leave and pay where they propose to share leave.

extended parental leave to be postponed for one year

It had been expected that the government would implement updated provisions of the Parental Leave Directive requiring member states (if they had not already done so) to extend the period of unpaid parental leave available to parents by 5 March this year.

Our current Regulations provide that, once an employee has completed one year’s employment with an employer, he or she can take up to 13 weeks’ unpaid parental leave for each child born or adopted. The leave can be taken at any time up to the child’s fifth birthday (or five years after placement in the case of adoption).