Member Article

Employers are likely to let out a collective groan of exasperation over the recently launched consultation on shared, flexible parental leave and the extension of the right to request flexible working to all employees. This consultation also includes, rather unexpectedly, proposed changes to the Working Time Regulations – likely to take effect in 2012 - to reflect European case law in relation to sickness and annual leave along with proposals for compulsory pay audits for employers who lose equal pay claims in the employment tribunal. For most employers in Scotland a new round of employment proposals at a time when new legislation is just bedding in will be about as welcome as an Andy Murray ankle injury in the first round of Wimbledon.

 

At the heart of the UK Government plans, which are not due to be implemented until April 2015, are fairly radical reforms to move to more flexible arrangements that allow both parents to share parental leave. It is proposed that the current leave arrangements will be replaced with a scheme under which there is an 18-week period of maternity leave.  The remainder of the leave will be flexible parental leave to be divided as the parents see fit, although each parent will have four weeks' leave and pay reserved exclusively for them.  These reforms are intended to move the world of work away from what the Government considers to be outdated notions of parenting and family responsibilities that restrict employers and employees alike.  They will extend from 54 to 58 weeks the total amount of paid and unpaid leave available to families on the birth of a child. Businesses have between now and August to put forward any concerns to the Government, which may be somewhat challenging.  How is an employer expected to gauge the potential impact of these 2015 proposals when it’s likely they’ve been unable to assess what effect the new additional paternity leave legislation, which only came into effect in April, is having on their business?

 

Putting this challenge aside, there is much to be welcomed within these proposals. The opening up of the lion's share of the leave to both parents, together with the reservation of a period of leave for the father, represent a clear move away from the existing set up, with its underlying assumption that the mother will take most of the leave. While in the short to medium term we may not see huge numbers of men taking on major shares of parental leave (especially given the low level of statutory maternity and paternity pay), this legislation does establish conditions in which a woman’s career need not bear the full brunt of a couple’s decision to have children.  The foundation will be put in place to change current expectations and practices which, in turn, may lead to greater re-integration of new mothers in the workplace.

 

This proposed legislation also gives parents greater choice and flexibility with the ability to take leave in blocks and in shorter periods, if it is workable for their employer.  For example, a woman might return to work at the end of her 18-week maternity leave but use two days a week of parental leave to facilitate part-time working for the first year. In some cases, this approach could be hugely beneficial to businesses which could get part time access to a valued employee instead of having to wait until the end of the current 52-week maternity leave period. The possibility of leave being taken in non-continuous blocks also potentially opens the way for leave to be fitted around busy and quieter periods at work.  But if agreement on a more flexible approach can't be reached, the employer will always be able to insist on the employee taking parental leave in a single block, as maternity and paternity leave are now.

 

There is understandable concern over the additional cost of the extra four weeks of paid leave. However, as much of the pay is likely to be reclaimed from the Government (at present most employers get Government relief on 92 per cent of the costs, rising to 103 per cent for small employers), the real cost to employers is likely to come in administering the scheme.  There are concerns that the proposals will cause confusion and expense for employers, who are likely to be faced with appeals, grievances and legal challenges over the decisions they make, as well as having to keep track of and manage the leave taken by two parents, one of whom is unlikely to be their employee.  While it is incumbent on the Government to make this as simple as possible, the greater input that the business community can have during this current consultation, the greater the likelihood that the legislation will not be overly cumbersome.

 

While in practice the proposed new arrangements are unlikely to lead to huge changes in employee behaviour when they are implemented in four years time, they do set out the foundations towards greater equality in the workplace. That may mean a short-term challenge for employers but if the Scandinavian model on which these proposals are fashioned is anything to go by, this could help deliver a better standard of living for us all in the future.