8th May 2013

INFORMATION
UPDATE

 Issue No.  2013/08

 Sentient
              

 

EMPLOYEE RIGHTS – WHAT’S ROUND THE CORNER?

The Government have recently published the Children and Families Bill.  Whilst obviously NOT LAW YET, the Bill contains the following key provisions that are likely to come into effect in due course.

TIME OFF WORK: ANTE-NATAL APPOINTMENTS

The Right:
Currently only those who are pregnant have the right to time off to attend ante-natal appointments.  The new right will give employees and agency workers the right to take unpaid time off work to accompany a pregnant woman to up to two ante-natal appointments for a maximum period of six and a half hours for each appointment.

To Qualify:
The employee or agency worker must be in a qualifying relationship with the pregnant woman.  A ‘qualifying relationship’ means the pregnant woman’s husband, civil partner or partner, the father of the pregnant woman’s child or intended parents in a surrogacy situation who meet specified conditions.

Procedure:
An employer will be entitled to require details of the date and time of the appointment in advance and require the employee or agency worker to make a declaration that:

  • He or she has a qualifying relationship with a pregnant woman or her expected child,
  • He or she is taking the time off to attend the ante-natal appointment
  • The appointment is made on the advice of a registered medical practitioner, midwife or nurse.

Enforcement:
Employees and agency workers will be able to complain to an Employment Tribunal that they have unreasonably been refused time off to attend the ante-natal  appointments.  If the complaint is well founded the tribunal must order the employer to pay a sum equal to twice the worker’s hourly rate for each hour he or she would have been absent for the appointment, had it been permitted.

We will let you know how this develops and report again in advance of it becoming in force.

RIGHT TO REQUEST FLEXIBLE WORKING

The Right:
Currently, the right to request flexible working is available to those employees who are parents of children who are 16 or under (or under 18 if the child is disabled) or carers of a relative.  The proposed change is to extend this right to all employees.

Procedure:
The current Statutory Procedure that must be followed will be dispensed with but what will fill the void?  It is proposed that employers will be under a duty to deal with applications for flexible working ‘in a reasonable manner’.  ACAS will publish and consult on a statutory Code of Practice to explain what the minimum requirements are and what a ‘reasonable manner’ means.

It will be interesting to see ACAS’s definition of ‘reasonable’ and how different this will be to the existing statutory procedure.

SHARED PARENTAL LEAVE AND PAY

You still with us?  Well we have to avoid confusion but this bit is complicated purely due to the Government giving certain rights similar names and the fact that some of these names already exist.

Current Rights

The following table sets out existing related rights that are available to employees, subject to meeting qualifying criteria/conditions:

  Statutory Maternity Leave

26 weeks Ordinary Maternity Leave plus
26 weeks Additional Maternity Leave

  Statutory Maternity Pay

39 weeks Statutory Maternity Pay

  Statutory Paternity Leave

Maximum of 2 weeks within 8 weeks of birth

  Statutory Paternity Pay

2 weeks Statutory Paternity Pay

  Additional Paternity Leave

One continuous period of leave between 2 and 26 weeks providing the mother has returned to work

  Additional Paternity Pay

Paid if the time taken is during the 39 weeks in which the mother/partner would have received SMP (had she not returned to work)

  Statutory Parental Leave

18 weeks unpaid leave (increased from 13 weeks w.e.f 8th March 2013) for each child up to their 5th birthday (maximum of 4 weeks in each year for each child)

 
Planned Changes

Additional Paternity Leave & Pay
Provisions relating to Additional Paternity Leave and Additional Paternity Pay will be repealed.  Statutory Paternity Leave and Statutory Paternity Pay will remain unaffected.

New Right:
This will be a right called Shared Parental Leave and Statutory Shared Parental Pay (not to be confused with the existing Statutory Parental Leave).

To Qualify:
Eligibility criteria will be contained in (as-yet unpublished) regulations.

Eligible adopters will also be able to use the new system for shared parental leave and pay.  (Adoption Leave and Pay will be extended to prospective parents in the fostering-to-adopt system and parents in a surrogacy arrangement who are eligible  for, and intend to apply for, a parental order).  The precise details will be set out in the final regulations.

Procedures:
Specific details of how the shared parental leave and pay scheme will work will similarly be contained in as-yet unpublished regulations.

Our Interpretation:
A ‘mother-to-be’ will continue to be eligible for statutory maternity leave and statutory maternity pay (or allowance) but will be able to choose to end their leave and pay/allowance early and share the remaining leave and pay with their husband/partner (the shared parental leave).

You can be forgiven for thinking that the new shared Parental Leave and Pay scheme is simply a rebranding of the Additional Paternity Leave.  We await the regulations to see how this scheme differs from the existing Additional Paternity Leave provisions.

The only change that can be seen is that the Additional Paternity Leave provision gives one continuous period of Additional Paternity Leave.  The bill allows regulations to provide for an employer to require employees to take leave in a single period rather than non-consecutive periods which suggests that Shared Parental Leave could be taken at intervals/instalments. 

FUTURE UPDATES

The above is not law yet and is currently going through the legislative process.  We will keep you informed on when the Bill receives Royal Assent and when the Act becomes law and when the final regulations are published.  We will report again when we can assess the full extent of the impact of these changes on employers.  


 

 

 

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