flexible work requests and flexible parental leave

Posted on March 28, 2013 by Martin Malone

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. Continue reading →

extension of flexible working rights

Posted on September 26, 2011 by Martin Malone

The Government has made clear for some time its intention to extend the right to request flexible working to most employees rather than just those who having caring responsibilities.

In September 2010 the Department for Business Innovation and Skills announced an intention to extend flexible working rights to all parents of children under 18 from April 2011 (covering a further 300,000 employees) and plans to roll out the rights to all employees. Extension of the rights would be accompanied with a new and simplified system for requesting parental leave.

However the April 2011 change was postponed. The reason given by the Government was the economic climate but it was made clear that the widening of entitlement remained firmly on its agenda (in accordance with the Coalition Agreement). Continue reading →

consultation on modern workplaces – flexible working arrangements

Posted on June 23, 2011 by Martin Malone

The Government issued its BIS "Modern Workplaces Consultation" on 16 May 2011. One of the topics covered is "Flexible Working". Consultation closes on 8 August 2011.

The paper gives examples (with explanations) of "flexible work" as follows: part-time; flexi-time; compressed hours; homeworking; annualised hours; term-time working; structured time off in lieu; job-sharing; and varied-hours working / time banking.

The right to have an employee’s request for flexible working taken seriously by employers was introduced in April 2003 for parents of children under six years old, or under 18 if the child has a disability. The employee must have been employed by the employer for at least 26 weeks. The right was extended to certain carers in 2007 and further extended to parents of all children under 17 in 2009. Plans, as an interim measure, to raise the child age limit from 17 to 18 with effect from 6 April 2011 were dropped in February 2011.

As previously announced (see for example Hansard, 29 November 2010) the Coalition Government proposes that the statutory right to request flexible working should be extended to all employees. The current focus on parents and carers is to be removed. However the requirement that the employee should have completed 26 weeks’ employment with the employer will be retained.

The introduction to the part of the consultation which covers "Flexible working" explains that it sets out "proposals to implement the Coalition Agreement commitment to extend the right to request flexible working to all employees". The introduction goes on to say that "We want to stimulate cultural change to make flexible working practices the norm, which we know will require more than just legislation. We will therefore also be developing non-legislative measures to promote flexible working opportunities both for those with a job and for those looking for one".

The right will remain a right to request (not to demand). To reduce administrative burdens on employers, the consultation suggests that the statutory process for considering requests should be removed and replaced with a new duty on employers to consider requests "reasonably", backed by a statutory Code of Practice to clarify what is "reasonable". As the consultation says there will be no change to the eight statutory grounds for refusing a request (set out in the Employment Rights Act 1996 s.80G), it is not very clear what a Code of Practice can add. It may however help if an employer has to choose between competing requests as the proposal is that they should then be allowed to take account of any factors they consider relevant.

The Government recently announced that businesses with fewer than ten employees will be exempt from new domestic regulations until 2014. Subject to any EU requirements, this moratorium will cover the proposed new rules.

Employers who are considering rejecting an employee’s request for flexible working arrangements are strongly advised to contact us. If they reject a request out of hand there is a risk that the employee may resign and claim constructive unfair dismissal. This happened last year, for example, in a case involving a hotel in Newcastle, leading to a tribunal award of over £10,000 to the employee concerned.

consultation on modern workplaces – parental rights

Posted on June 23, 2011 by Martin Malone

The Government issued its BIS "Modern Workplaces Consultation" on 16 May 2011 . One of the topics covered is "Flexible Parental Leave". Consultation closes on 8 August 2011.
In bare outline, the main elements in the “flexible parental leave” part of the proposals are :

Initial leave rights (around the birth/adoption of a child):

Maternity leave to be reduced from the current 52 weeks to 18 weeks (the minimum required by new EU law);
"Flexible parental leave" would be available for the next 34 weeks (i.e. after the 18 weeks’ maternity leave period), shared between the parents as they see fit;
If the parents decide not to share the 34 weeks so that one of them takes it in full, then a further period of "reserved leave" (4 weeks is suggested) will be available to the other (this is social engineering – the government specifically says at para. 48 that this is because it wants to change the "widespread cultural expectation that it should always be the mother who takes time out from work to care for children");
Ordinary paternity leave to remain at 2 weeks;
Fathers also to have the right to time off before the birth to attend a limited number (two is suggested) of pre-natal appointments.

Employers would be able to insist that leave is taken in a continuous period (the consultation paper says that "the process of agreeing when leave is taken is left up to the parties … Where they can not agree, the default position would be for parents to take leave in one continuous block"). It also suggests that there "should be no restriction on parents choosing to take leave concurrently. Allowing only one parent to be out of the workplace at any one time would place unnecessary restraints on how leave may be taken, and interfere with the ability of parent and employer to agree how leave is taken".

Subsequent leave rights

Currently parents who have been employed by their current employer for a year or more are entitled to 13 weeks’ parental leave for each child aged between one and five, Not more than four weeks can be taken in any year and the leave must be in blocks of a full week.

The essence of the proposals is to increase the amount of parental leave from 13 to 18 weeks (this is required by new EU law), to remove the requirement of a year’s employment and possibly to increase the age of the child from 5 to 8, 12, 16 or even 18.

Pay

Currently employed mothers who qualify get statutory maternity pay (SMP) for 39 weeks. They receive 90 per cent of their average earnings, subject, after the first six weeks, to a cap of (currently) £128.73 per week.

Under the new proposals the 18 weeks’ maternity leave and the first 21 weeks of the 34 weeks of flexible parental leave would be paid at 90 percent of average earnings subject to the cap noted above, currently £128.73 per week. There is no mention in the consultation paper of special provision during the first six weeks, as at present. The four weeks’ "reserved leave" noted above would be leave with pay as would the two weeks ordinary paternity leave (as at present).

Other leave (including the father’s right to time off for pre-natal appointments and the right to parental leave after the child’s first birthday) would generally be unpaid.

Finally

The suggestions in the consultation paper are not set in stone. They may well be changed, although no doubt the general thrust of encouraging parents to share in the bringing up of small children will be retained. Concerns have been raised that in practice there will be enormous administrative costs involved, not least in policing, if a new system along the lines suggested in the consultation paper is to be adopted and not abused. Concerns have been expressed by, amongst others, the British Chambers of Commerce (BCC) and the Federation of Small Businesses (FSB).

March 2010 Budget and employment law

Posted on April 17, 2011 by Martin Malone

A government “Plan for Growth” document was issued along with the Budget on 23 March 2011. From an employment law angle the following items are of most significance:
• extension to businesses with fewer than 250 employees of the right for employees to request time to train has not been implemented on 6 April 2011 as previously planned;
• extension to parents of 17 year olds of the right to request flexible working has not been implemented on 6 April 2011 as previously planned;
• the “dual discrimination” rules in Equality Act 2010 have not been introduced on 6 April 2011 as previously planned
• the government “will consult to remove the unworkable requirement in the Equality Act for businesses to take reasonable steps to prevent persistent harassment of their staff by third parties …”.

Other relevant matters include:
• basic personal income tax allowance to go up by £1,000 (to £7,475) in April 2011 and by a further £630 (to £8,105) from April 2012;
• consultation on simplification and merging of income tax and National Insurance;
• abolition of the so-called “Default Retirement Age” (at 65) has proceeded as planned from 6 April 2011;
• up to 50,000 additional apprenticeships and up to 100,000 additional work experience placements over the next four years;
• a moratorium exempting micro (fewer than 10 employees) and start-up businesses from new domestic regulation for three years from 1 April 2011;
• promote labour mobility “by boosting the supply of housing through support for the housebuilding industry, with a FirstBuy shared equity programme to assist over 10,000 first time buyers to get on the housing ladder”;
• increase Approved Mileage Allowance Payments from 40 pence to 45 pence per mile and extend it to cover volunteers travelling as passengers;
• the National Insurance rate rise which the last Government announced will have to go ahead.
• ending the practice of “disguised remuneration” which “sees highly paid employees offered tax-free, lifetime loans that are never repaid”.
• increasing employee contributions for public service pensions by “an average of 3 percentage points”;
• Lord Young’s recommendations on health and safety laws will be implemented in full;
• plans will proceed for introduction (over many years and not for current pensioners) of a single-tier flat-rate state pension (currently estimated to be worth around £140 to £150 per week)

newsletter – right to request flexible working

Posted on October 26, 2010 by Martin Malone

The Coalition government has announced two “family friendly” employment law proposals, following a commitment in the Coalition’s “programme for government” which stated:

We will extend the right to request flexible working to all employees, consulting with business on how best to do so” and “We will encourage shared parenting from the earliest stages of pregnancy including the promotion of a system of flexible parental leave”.

An article by Ed Milliband in the Daily Mirror in early July said “let’s give every employee the right to flexible working” – so the first of these proposals seems to be non-controversial, at least at a political level.

The two immediate proposals are:

The right to request flexible working arrangements. Since April 2003, parents and others (such as guardians) with responsibility for caring for children have had the legal right to ensure that requests they make for flexible working arrangements (such as part-time work or working from home) are taken seriously by their employers. The request must be to enable the employee to care for the child and an important condition is that the employee must have been employed in his job for at least 6 months to be eligible. In April 2007 the right was extended so that carers of certain people other than children could claim the right.
Originally the child concerned had to be aged under 6 (or 18 if disabled). In April 2009 the age 6 limit for children was raised to 17. On 30 September 2010, the government announced that the child age limit is to be raised further to 18 with effect from April 2011. Official figures suggest that just under 290,000 additional employees will be eligible to benefit.
A consultation on implementing in full the parts of the Coalition “programme for government” noted above. Also on 30 September 2010, the government announced that a consultation will be launched “later this year” to look at how best to extend the right to request flexible working to all employees and also to consider “the design of a new system of flexible parental leave”.
The government has confirmed that in the meantime the Additional Paternity Leave regulations implemented in April 2010 will “remain in force as an interim measure for encouraging shared parenting from the earliest stages of pregnancy”. These regulations have effect for parents of children due on or after 3 April 2011. New mothers will have the right to transfer the second half of their year-long maternity leave entitlement to the father. The father will have the right to up to six months extra paternity leave once the mother has returned to work and to the extent that he takes this extra leave during the mother’s maternity pay period, he will qualify to receive what is in effect the balance of her Statutory Maternity Pay entitlement.

This is an item from our October 2010 newsletter. If you are interested in subscribing to our monthly newsletter please click here.

Government confirms its commitment to extend flexible working rights

Posted on October 1, 2010 by Martin Malone

The Government has confirmed that it has what it calls “ambitious” plans to extend flexible working rights for working parents.

In the short term, from April 2011, the right to request flexible working will be extended to all parents of children under 18, which will add about 300,000 employees to those already eligible to request flexible working.

However the Government has also launched a consultation to consider extending the right to all employees and launching a new system of flexible parental leave.

Employment Relations Minister Edward Davey said:

Edward Davey

We want to help parents and create a fairer, family friendly society. We will be launching a consultation later this year to make sure the law better supports real families juggling work and family life, and the businesses that employ them.

This immediate change will give parents of all children regardless of age the same right to request flexible working. It will also make it simpler for employers and employees to identify whether they are eligible to make a request.

The plans we’ll unveil later this year are much more ambitious but these interim measures will help us learn valuable lessons and are an important first step.

Equalities Minister Lynne Featherstone added:

Lynne Featherstone

A family-friendly workplace is a business-friendly workplace. Companies are missing out the skills and talents of too many people who are forced to choose between raising a family and having a job, so we will be working with businesses to change this in a way that will make life better for employers, employees and the economy.

This will be a long process involving wide-ranging change, and today’s measures are the first stage in that journey.

the coalition government and employment law

Posted on June 17, 2010 by Martin Malone

Our newsletter last month outlined employment law related proposals in the General Election manifestos of each of the three main political parties. Now of course these have no direct relevance. Instead the new Coalition Government Agreement states that there will be a review of “employment and workplace laws, for employers and employees, to ensure they maximise flexibility for both parties while protecting fairness and providing the competitive environment required for enterprise to thrive“.

What that means in practice is far from clear. However some key points are emerging:-

The Identity Cards scheme is to be scrapped by end August 2010. An “Identity Documents Bill” had its first reading in the House of Commons on 26 May. This will repeal the Identity Cards Act 2006 and end the ID cards scheme. It will remove ID cards’ status as travel documents or proof of ID and provide for scrapping the underlying databases as well as for cancellation of contracts with suppliers (notably Thales). Around 15,000 ID cards (at £30 each) have already been issued to select groups, including workers at Manchester and City of London airports, pending the previously intended nationwide roll-out in 2012. They will presumably become worthless save as museum pieces.
In line with a general policy of ending the gold-plating of EU Directives it is possible that parts of the 2006 TUPE Regulations (notably the “service provision change” part) and of the 2010 Agency Workers Regulations may be watered down.
A Pensions and Savings Bill is to provide for phasing out of the age 65 “default retiring age” (at which, subject to conditions, employees can currently be required to retire without unfair dismissal rights). The Bill is likely to include further provisions about increasing state pension age and for State Pensions to increase in line with earnings rather than inflation as from 2012 (it may not be over-cynical to note that the link to inflation was made when earnings were rising faster than inflation while now that position appears to have been reversed. Thus the Reed Job index recently reported a dip in salaries while inflation indicators are showing a sharp rise in both CPI and RPI ).
The right to request flexible working is to be extended to all employees.
Replacement of the Human Rights Act with a British Bill of Rights, proposed in the Tory manifesto, is not incuded in the coalition agreement (Justice Secretary Kenneth Clarke is reported as saying that repealing the Human Rights Act is not a high priority).
The Labour government’s proposed 1% rise in National Insurance contributions payable by employers from April 2011 is to be scrapped. However the 1% rise in employee NICs will go ahead, albeit offset for the lower paid by an increase in personal tax allowances.
There appears to be some uncertainty about the future of the Equality Act 2010 after the October 2010 implementation date was recently removed from the Government Equalities Office website.
The much derided Vetting and Barring Scheme has been stalled following a Government announcement on 15 June. Voluntary registration was due to start on 26 July with compulsory registration to be implemented by November 2010. The changes will affect 66,000 organisations including employers, voluntary groups and education authorities. New Home Secretary Theresa May commented:

“The safety of children and vulnerable adults is of paramount importance to the new government.

“However it is also vital that we take a measured approach in these matters. We’ve listened to the criticisms and will respond with a scheme that has been fundamentally remodelled.

“Vulnerable groups must be properly protected in a way that is proportionate and sensible. This redrawing of the vetting and barring scheme will ensure this happens.”
Theresa May is known to have opposed the scheme, describing it as “draconian”. She told the BBC: “You were assumed to be guilty until you were proven innocent, and told you were able to work with children”.

Other Coalition proposals include a clampdown on “unacceptable” bonuses within the banking sector; extension of proposals for social security benefits to be conditional on willingness to work; a cap on immigration from outside the European Union; some form of tax break for married couples and civil partners (Lib Dems able to abstain) and a review of the IR35 tax arrangements (which neuters tax advantages of individuals, notably IT consultants, who provide their services through wholly owned limited companies).

Flexible working is the most valued employee benefit

Posted on June 2, 2010 by Martin Malone

According to research published by PricewaterhouseCoopers (PwC) a majority of UK workers value a work-life balance ahead of financial benefits.

Flexible working arrangements were rated as the most important benefit (47%) ahead of performance related bonuses (19%). The survey was of 1167 professionals in the UK as part of PwC’s Managing Tomorrow’s People annual global report on employment trends for the decade ahead.

Michael Rendell, head of human resource services at PwC, commented:

Two years of recession have changed people’s attitude towards work. With companies mindful of taking on new employees, existing staff have been expected to do more with less. Our survey indicates that employees may be feeling the pressure, with large numbers hoping for a better work- life balance in the future, and half saying they would rather work for themselves.

With bonuses unpredictable in uncertain economic conditions, employees are looking for broader benefits.

Companies that can adapt to the UK’s growing flexible working culture will be best placed to sustain morale and retain top talent when the job market becomes more buoyant.

The publication of the research coincides with the stated intention of the new coalition government to extend the right to request flexible working to all workers.

Others rated a good company pension plan (15%), paid time off for social and humanitarian work (7%), exposure to advanced networking and social activities (6%) and paid training and development (6%) as important benefits. Half of those surveyed would prefer to be self-employed.