|
|
|
|
Working Families
In fulfilment of its manifesto promises the Government is currently in the process of overhauling a whole raft of family friendly rights including maternity leave, paternity leave and flexible working. The Work & Families Act 2006 provides the framework for the new rights with supporting regulations giving much of the detail. |
Maternity / Adoption leave & pay
New rules came into force on 1 October 2006 which apply to women whose expected week of childbirth (EWC) or date of adoption falls on or after 1 April 2007. The new rules include:
- All pregnant employees will qualify for 12 months maternity leave, regardless of their length of service
- Statutory maternity pay (SMP), maternity allowance (MA) and statutory adoption pay (SAP) is extended to 39 weeks. Somewhat confusingly for employers, this leaves an overlap between the SMP period and additional maternity leave, meaning women will be paid for part, but not all, of their additional maternity leave.
- All employers must allow an employee returning from additional maternity leave or additional adoption leave to return to the same or a similar job or any dismissal will be automatically unfair
- An employee must give eight weeks notice when returning early from additional leave
- The SMP period or MA period may start on any day of the week, concurrently with ordinary maternity leave. Previously, ordinary maternity leave could start on any day of the week but SMP started on the Sunday after the employee stopped working
- The introduction of "Keeping in Touch" days. Where both parties agree, those on maternity or adoption leave can return to work for up to 10 days during their leave without losing their right to leave or pay. Employees who undertake, consider undertaking, or refuse to undertake such work will be protected from detriment or dismissal on those grounds. Employers will also be entitled to make "reasonable contact" with employees while they are on maternity leave. |
Flexible working
At present only parents of children under the age of six (or, in the case of a disabled child, Personal Injury Carol Jackson under 18) can make a statutory request for new work patterns such as part-time working, job-sharing, flexi-time, home working or term-time working. As of the 6 April 2007, this right will be extended so that employees who care for adults (over the age of 18) can also request flexible working. The key aspects of the new provisions are:
- A "carer" will be an employee (with at least 26 weeks´ continuous service) who is or expects to be caring for an adult who:
- Is married to, or the partner of the employee
- Is a near relative of the employee - including parents, parents-in-law, adult children, adopted adult children, siblings (including those who are in-laws), uncles, aunts, grandparents or step-relatives; or
- Falls into neither category but lives at the same address as the employee
- The level of caring responsibility required will not be defined; nor will actual proof of caring responsibilities be needed
- Requests must be dealt with in the same way as under the existing regime.
The Government estimates that these changes will benefit around 80% of all carers but, as currently drafted, the regulations leave some absurd inconsistencies. A parent who has caring responsibilities for a child aged between 6 and 17 cannot make a statutory request even if the child has special needs (unless the child is entitled to a disability living allowance). Likewise, an employee who cares for an elderly neighbour who has no family of their own will fall outside the requirements. The Government hopes that employers will, of their own volition, reasonably consider requests which fall outside the statutory right. |
Paternity leave & pay
Additional paternity leave (APL) and additional statutory paternity pay (ASPP) are due to be introduced at the same time that entitlement to SMP/SAP is extended to one year (probably 2008 or 2009). As yet, no draft regulations are available, but the Dl has published its response to the consultation and this includes the following key points:
- Fathers will be eligible for APL of up to 26 weeks if they qualified for ordinary paternity leave (OPL) and remain with the same employer. Length of service to qualify for APL and ASPP will be a minimum of 60 weeks in normal cases
- Some of APL can be paid. The calculation method of ASPP will be linked to the employees average earnings in the 8 week period running up to and including the week immediately preceding the 14th week before the EWC or the week of notification of matching for adoption regardless of any subsequent pay rise
- APL can only be taken when the mother has 'returned to work' and she will be deemed to have done so if she has ended her statutory maternity leave and has stopped receiving SMP. APL and ASPP can be taken at the earliest 20 weeks after the child´s birth and must be taken before the child turns one
- Any period of APL must be taken in a single continuous block and the minimum period will be two weeks. A gap will be allowed between the mother ending her maternity leave and the father starting his APL & ASPP
- 10 keeping in touch days will be allowed, as will reasonable contact during APL
- While on APL a father will be entitled to OML equivalent terms and conditions and is entitled to return to his own job.
There remains much uncertainty about the interaction between maternity and paternity leave. How, for example, will an employer dealing with a request for APL know that the child´s mother (who is not its employee) has returned to work? The Government seems to think that abuse of the system is unlikely, but this may be an over optimistic view.
There are a number of practical steps that employers can take in anticipation of the new regime.
- Review maternity and flexible working policies to ensure they comply with the new rules
- Remember indirect discrimination - even though an employee is ineligible to bring a statutory flexible working request they may be able bring a discrimination claim.
If you would like any more information about this, or related employment matters, please do not hesitate to contact Adrian Berkeley, Head of the Employment department, on 0161 371 0011 or by e-mail: post@claim.co.uk
This newsletter contains information on current legal issues applicable at the time of printing January 2007. Note there may have been changes subsequently which have not been incorporated into the material. This newsletter is intended for Information purposes only and its contents should not be applied to any particular set of facts or relied on without legal or other professional advice. |
|
|
|
|
|
|
|
|
|
|
|
|
| Return
to Employers Main Page |
|
|
|
|
|
