The Government is consulting on ways to improve support to parents to balance work and family-life, including a potential shake-up of parental leave and pay, a new right to Neonatal Leave and Pay and greater transparency around employers' flexible working and family leave and pay policies.

The consultation closes on 29 November 2019, with Chapters 2 and 3 (neonatal and transparency) closing on 11 October 2019. Good Work Plan:  Proposals to support families.

Background

The consultation was one of Theresa May’s last acts before she stepped down as prime minister and contains proposals for a longer period of paternity leave as well as a new neonatal leave entitlement for parents of premature and sick babies who need to spend a prolonged period in hospital.  

Whilst the introduction of shared parental leave in 2015 was the last significant development in this area, the slow uptake has suggested that the Government may have to go further if it wants to shift societal attitudes about who should stay home with a baby.  

In December 2018, the Government responded (in their Good Work Plan) to the Taylor Review of Modern Working Practices (see our report here), which included, amongst many things, a commitment to consider whether the flexible working regime could be extended to permit requests for temporary changes and to encourage flexible working initiatives such as the use of the "happy to talk about flexible working" strapline in job advertisements.  Then, more recently:

• Jo Swinson's Private Members Bill, first presented to Parliament in June 2018, proposes to require employers with more than 250 employees to publish information about parental leave and pay (Parental Leave and Pay Arrangements (Publication) Bill 2017-19);
• David Lindon's Private Members Bill, first presented to Parliament in June 2019, proposes to extend entitlements to parental leave for parents of babies born prematurely or requiring neonatal care; and
• a new European Directive on work-life balance, announced in June 2019 and which has to be implemented by all Member States by mid-2022, is due to introduce new rights for carers and working parents, including a strengthened right to parental leave (including two paid and non-transferable months for one parent).

This consultation asks a wide range of detailed questions about how these new rights can be implemented and enforced, demonstrating what appears to be a clear intention from the Government to further enhance and protect family-friendly rights in the workplace. In the introduction to the consultation, the Government comments that the Good Work Plan is the largest upgrade to worker’s rights in a generation, and that they are making good progress in delivering on its commitments.

Consultation

The consultation is focussed on additional support for employed parents because employees do not have the same level of flexibility and autonomy over the time they take off as self-employed people do.  Although the Government is not ruling out providing further support for self-employed parents in the future, the consultation notes that this would need to be carefully considered in the wider context of tax, benefits and rights over the longer term.

The consultation is split into 3 chapters directed towards employees, as follows:

Chapter 1: Exploring the high-level options for reforming parental leave and pay, and seeking views on the benefits, costs and trade-offs.

The Government could potentially review and reform: (1) Paternity leave and pay; (2) Shared Parental Leave and Pay; (3) Maternity Leave and Pay; and (4) Parental leave for parents of older children.  The consultation discusses the importance of making the right trade-offs and choices to support families, and ensuring that any reforms meet the Government's policy objectives of:  flexibility for families, increasing fathers' involvement in childcare, supporting women's labour market participation and further reducing the employment and gender pay gaps.

In recent years, the Women and Equalities Select Committee has recommended that statutory paternity pay should be paid at 90% of salary (capped for high earners) and that there should be a new, additional, entitlement to 12 weeks of parental leave and pay for fathers, with the first four weeks being paid at 90% of the father's salary (capped for high earners), which could only be taken when the mother had returned to work.  Organisations such as Working Families and the Equality and Human Rights Commission are in support, who have both separately recommended that a well-compensated, standalone period of extended Paternity Leave for fathers could increase take-up.

The consultations notes that reforming parental leave arrangements – in particular, either Paternity Leave or Shared Parental Leave – is likely to mean also looking at the interplay with maternity leave and pay.  For example, if fathers were given more flexibility within the current arrangements for paternity leave (e.g. if they were allowed to take their leave in blocks), it would be unfair not to give mothers the same flexibility within the maternity leave and pay scheme.   Equally, if there were changes to the periods of pay enhancement or the enhancement level itself, that would need to be done while considering the equality of treatment between both partners in the family

Finally, whilst moving to a new model for family-related leave and pay would require a significant and sustained investment of resources, the consultation notes that it may be preferable to piecemeal amendments which risk inadvertently undermining the policy objectives of individual entitlements. To create maximum impact and lasting change, the Government wants to ensure that it has fully exploited the potential of reforms to meet their policy objectives from giving parents access to parental leave and pay. 

Chapter 2: Proposals for new entitlements for parents of babies who require neonatal care.

The consultation anticipates that:

• neonatal leave would be a 'day 1 right' for all employees, which would not require any length of qualifying service;
• neonatal pay would mirror existing family-related statutory payments, such as statutory paternity pay and statutory shared parental pay (i.e. paid at a flat rate and will require a qualifying period of 26 weeks continuous service at the 15th week before the baby is due, with average earnings over a prescribed reference period above the Lower Earnings Limit);
• parents of babies admitted to neonatal care following birth would be given an additional week of statutory leave and pay for each week that their child is in hospital, capped at a maximum number of weeks;
• the right would be restricted to the individuals who would have had the main responsibility for caring for the child, had it not been admitted to neonatal care and only for parents whose baby/babies have been in neonatal care for two weeks or more;
• employers would be permitted to require evidence of the entitlement; and
• parents on neonatal leave should have the right not to be treated unfavourably, or to be dismissed because they are taking, or are seeking to take, Neonatal Leave, as well as having the right to return to the same job that they were employed in before their absence.

Chapter 3: Considering new measures to increase transparency of the employer offer on flexible working and family-related leave and pay

The consultation proposes requiring large employers (with 250 or more employees) to publish their family-related leave and pay and flexible working policies, perhaps by a link to the relevant policies on their website.  It also seeks views as to whether this should be a requirement to report or a voluntary approach to start with.

Finally, the consultation seeks view as to whether there should be a requirement for job adverts to say whether jobs are open to flexible working and opens the discussion around how this could be backed up by an effective and proportionate means of enforcement.

Comment

The consultation is in keeping with the general trend in recent years to steadily expand family-friendly rights in the workplace. However, as the consultation notes, there is still more work to be done to support female participation in the workplace and to close the employment and gender pay gaps. The consultation refers to the introduction of shared parental leave in 2015 and the evaluation of the scheme that is currently taking place, with a report expected later in the year. Clearly, this consultation will play into that evaluation. Given that there have been only gradual increases in the number of parents taking shared parental leave and pay since its introduction, it is perhaps unsurprising that the Government is "…keen to use this consultation to explore options for enabling more women to combine having a family with pursuing their career and enabling men to play a greater part in childcare."

Good Work Plan: Proposals for families