Member Article

The Government launched its consultation on modern workplaces on 16 May 2011.  The consultation contains proposals for a system of shared flexible parental leave, the extension of the right to request flexible working to all employees, changes to the Working Time Regulations to deal with the interaction of holiday and sickness absence and proposals to require employers to carry out equal pay audits if they lose an equal pay claim.  The consultation runs for 12 weeks and closes on 8 August 2011.

Flexible parental leave

The Government had widely trailed its intention to replace the current system of maternity and paternity leave with a more flexible form of parental leave.  Its proposals are as follows (there will be similar provisions for adopters and same-sex couples):

• unpaid leave for fathers to attend "significant" antenatal appointments (limited to 2 in uncomplicated pregnancies)
  
• an initial block of 18 weeks' maternity leave and pay, reserved for mothers and to be taken in a continuous block at the time of the birth;
  
• existing right to ordinary paternity leave and ordinary statutory paternity pay straight after the birth retained;
  
•  four weeks' paid parental leave exclusive to each parent to be taken in the first year;
  
• 30 weeks additional parental leave (of which 17 are to be paid) will be available for either parent on an equal basis;
  
• parents will be able to take leave at the same time and may also be able to take leave in small blocks of leave or on a part-time basis.  The consultation contains flow charts and diagrams illustrating how the proposed shared parental leave might work;
  
• employers will retain the right, where agreement cannot be reached over flexible arrangements for parents to take their leave in a continuous block; and
  
• the new scheme will also deal with the existing right to 13 weeks' unpaid parental leave, which currently applies up until the child's 5^th birthday and will continue to be available in addition to the flexible maternity and parental leave set out above.  It is suggested that the one-year qualifying period will be removed and the maximum age of the child until which unpaid parental leave can be taken will be extended to their 8^th, 16^th or 18^th birthday.  The amount of unpaid parental leave per child will be extended from 13 to 18 weeks in line with the revised Parental Leave Directive.

Extension of right to request flexible working

As it indicated from the outset, the Government also proposes to extend the right to request flexible working to all employees.  It is currently only available to children under 17 (under 18 if the child is disabled) and some carers.  The proposals are:

• to retain the requirement for 26 weeks continuous employment in order to be able to request flexible working;
  
• to abolish the statutory procedure for considering requests, replacing it with a new duty on employers to consider requests reasonably;
  
• to introduce a statutory code of practice, setting out guidance on how to handle requests.  This code will be the subject of further consultation;
  
• to allow employees to make a second request in any 12-month period (currently only one is allowed), if their original request stated that they expected the change to last for less than a year.  This would allow temporary changes to deal with complex situations; under the current legislation, any successful request results in a permanent change to the employees working pattern;
  
• there will be no rules on prioritising competing requests – employers will be able to take account of any factors they consider to be relevant if they have to choose between requests.

Working time Regulations

Unexpectedly, the consultation also propose changes to the Working Time Regulations to take account of the ECJ case law, which has established that workers unable to take their annual leave due to sickness absence or maternity or parental leave in the current leave year must be able to carry it forward in to the following leave year.  Proposals include:

• a worker who has been on sick leave, maternity, adoption, paternity or parental leave and is unable to take their holiday in the current leave year, will be able to carry over annual leave to the following leave year.  This right will be restricted to the 4 weeks' annual leave required by the Working Time Directive and will exclude the additional 1.6 weeks' holiday granted by the Working Time Regulations;
  
• employers will be able to insist that leave untaken due to sickness absence must be taken in the current leave year where possible, rather than be carried forward.  They may also require a worker to defer the outstanding leave until the following leave year if that is justified in terms of business need; and
  
• views are sought on additional flexibility for employers around the operation of annual leave, including the ability for employers to "buy out" the additional 1.6 weeks' leave or to defer it to the following leave year if required for operational reasons.

Equal pay audits

Finally, the consultation considers imposing mandatory equal pay audit on employers who have been found by an employment tribunal to have discriminated on the grounds of sex with regard to pay.  An employment tribunal will have to order the employer to carry out the audit and publish the results, although there will be exceptions where an employer has conducted an audit in the last three years, has in place another appropriate means of ensuring that their pay structure is non-discriminatory or the tribunal does not consider, in the circumstances, that it would be productive to order the audit.  Views are sought on the most appropriate sanction for failure to comply.

Implementation

The Government aims to implement the changes to the Working Time Regulations in 2012.  Legislation for flexible parental leave, flexible working and equal pay is to be brought to the statute books as soon as possible in this parliament.  Flexible parental leave is proposed to take effect from April 2015, subject to affordability.  No timescale is indicated for the implementation of the proposals on flexible working or equal pay audits.