The Government has recently issued its response to the flexible parental leave elements of the Modern Workplaces Consultation. A new system of flexible parental leave is to be introduced in 2015 under which parents (or the mother and her partner) can share up to 50 weeks' flexible parental leave and 37 weeks' flexible parental pay. The leave can be taken either concurrently or consecutively. Other family-friendly measures include better rights for those who become parents by way of adoption or surrogacy, a new right for fathers to attend ante-natal appointments and extended rights to unpaid parental leave.
In the foreword to the Response the Government highlights its commitment to become "the most family friendly Government in the world". In keeping with this commitment, the Government has unveiled a package of measures which are designed to encourage fathers to take a greater role in caring for their babies and enable working families to be able to share leave and pay. It is also hoped that these measures will reduce the "gender penalty" that women suffer from taking time out of the workplace with their children.
New system of flexible parental system of leave and pay:
What is flexible parental leave?
Currently, women are entitled to take up to 52 weeks' maternity leave, with 39 weeks' paid and 13 weeks' unpaid. There is a 2-week period of compulsory maternity leave, which women must take before they are able to return to work. This will remain in place as the default position for all employed women.
However, where a woman and her partner both meet the qualifying conditions for the flexible parental system, the woman will be able to:
· end her maternity leave; or
· commit to ending her maternity leave at a future date,
and share the untaken balance of the maternity leave and pay with her partner. The shared leave and pay will be known as flexible parental leave and pay. Only the woman will be able to take the compulsory 2-week period of maternity leave. This means that the woman and her partner can share a maximum of 50 weeks' flexible parental leave and 37 weeks' flexible parental pay.
How can flexible parental leave be taken?
Flexible parental leave can be taken by the mother and her partner either concurrently or consecutively, provided that the total amount of leave does not exceed the maximum 50 weeks' leave (excluding the 2-week compulsory maternity leave period).
Leave must be taken in minimum blocks of one week, however, individual patterns of leave will need to be agreed with the respective employers, although it is not envisaged that the respective employers will need to contact each other and agree any proposals on a joint basis.
The Response indicates that parents wishing to take flexible parental leave should discuss the proposals with their employers as early as possible. However, it appears that employers will ultimately have a veto over any proposed pattern and, in such circumstances, the leave will default to a single block to commence on a date specified by the employee. It is not yet clear whether employers will have to follow a formal process for considering requests, however, the Response document highlights that discussions should be "informal" and that employers will be able to have "frank and open discussions" about their employees' leave plans.
Who will be eligible to take flexible parental leave?
Both parents or the mother and her partner (i.e. husband, civil partner or partner, including same sex partner) will have to meet certain length of service or economic activity tests in order to access the flexible parental system. These require the employee to:
· have 26 weeks' continuous service with the same employer by the 15th week before the expected week of childbirth;
· have worked for 26 out of the 66 weeks prior to the expected week of childbirth and to have earned a minimum average specified amount for 13 out of those 66 weeks ; and
· work for the same employer during the whole of the flexible parental leave.
The Government has indicated that it will consider making arrangements for working parents who do not meet the qualifying requirements to receive flexible parental pay, but that this will not be before 2018 to allow time for the development of the Universal Credit system.
When will flexible parental leave be introduced?
It is envisaged that the flexible parental system will be introduced in 2015. In the meantime, there will be a consultation next year on how the system will work in practice.
Other family-friendly measures:
Adoption Leave and Pay
Rights for adoptive parents are to be brought more closely into line with the leave and pay rights available to birth parents. Employees will be entitled to statutory adoption leave from the first day of employment, with no qualifying conditions. Statutory adoption pay will also be enhanced to 90% of the primary adopter's salary for the first 6 weeks. In addition, working couples who adopt will be able to opt into the flexible parental system if they meet the qualifying conditions.
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 flexible parental leave and pay, provided that they meet the qualifying conditions. Both parents will also be able to take unpaid time off to attend 2 ante-natal appointments with the surrogate mother.
Right for fathers to take unpaid time off to attend antenatal appointments
Fathers and partners of pregnant women will be entitled to take time off work to attend 2 ante-natal appointments with their pregnant partner.
Unpaid parental leave
In March 2013, the number of weeks unpaid parental leave will increase from 13 to 18 to comply with the revised EU Parental Leave Directive. In 2015, the age limit of the child for whom unpaid parental leave can be taken will increase from 5 to 18 years.
Paternity leave and pay is unchanged and will remain at 2 weeks. The Response notes that an extension of paternity leave and pay is currently unaffordable, however, the Government intends to take appropriate powers in the forthcoming legislation to allow an extension to made at a future date when finances permit and the new system of flexible parental leave is "fully embedded". Accordingly, we are unlikely to see an extension to paternity leave and pay before 2016 at the earliest.
The Government's proposals represent a radical overhaul of the family-friendly employment law regime. Whilst this will no doubt be welcomed by parents, it poses some significant challenges for employers. In addition to tracking the implementation dates of the raft of changes proposed (see here for our summary of impact dates) and ensuring that policies and procedures are refreshed, employers will have to grapple with the practicalities of the new regime.
Requests made under the flexible parental leave system have the potential to cause significant disruption. For example, one possible arrangement would be for the parents to alternate one week periods of leave for the full 50 weeks. Covering such frequent absences and providing the employee with valuable tasks during their working time may be difficult. The administration of pay and benefits in such circumstances would also be more complex. Whilst employers will effectively have a veto over flexible parental leave proposals, dealing with disgruntled employees presents its own problems and risks.