Radical proposals to make the workplace more family friendly
Clare Cruise

BIS has opened a consultation entitled Modern Workplaces Consultation, on plans to: 
  • extend the right to request flexible working to all employees;
  • introduce a new system of shared, flexible parental leave;
amend the Working Time Regulations 1998 to allow for carry over of annual leave in certain circumstances.
Flexible Working

The Government proposes extending the right to request flexible working to all employees once they have accrued 26 weeks’ service.  Further proposals include:
  • making the system for considering flexible working requests more adaptable by replacing the existing statutory process with a duty on employers to consider requests “reasonably”, thereby giving employers more discretion as to how they deal with such requests.  A Statutory Code of Practice would be published to demonstrate a reasonable request process;
  • allowing employees to make more than one request for flexible working within any twelve month period where they state in the original request that they expect the change to last for less than a year.  The Government hope that this will allow employees to take temporary leave to cope with difficult situations; and
  • allowing, but not requiring, employers to prioritise competing requests to take account of any other factors they consider relevant if they have to choose between different requests.  The Government is against the idea of providing formal guidance on this issue as it believes that to do so would reinforce the idea that the right to request flexible working is a right which is only open to parents and carers.  The employer would nevertheless still have to show that the competing requests could not all be accommodated and the wider principles of discrimination law would need to be respected.
Flexible Parental Leave

The Government is aiming to make paternity and maternity leave more flexible by reforming the current arrangements for maternity leave, paternity leave and additional paternity leave.  It proposes:
  • giving fathers the right to take unpaid leave to attend ante-natal appointments;
  • an 18-week period of maternity leave reserved exclusively for mothers to be taken in a continuous block around the time of the baby’s birth.  The existing right for fathers to take two weeks’ ordinary paternity leave and pay around the time of the baby’s birth would remain;
  • the remaining 34 weeks of leave currently available to mothers would be reclassified as parental leave and available to either parent on an equal basis;
  • the current availability of 39 weeks’ pay would be retained.  Once the mother has received pay for the 18 week period reserved to her, 21 weeks would remain and be reclassified as parental pay.  This would be paid on a basis which replicates the current arrangements for Maternity Allowance or Statutory Maternity Pay – i.e. at 90% of existing earnings up to the flat rate (currently £128.73);
  • employees would be allowed to take their leave in smaller chunks and simultaneously.  Employers will not have the right to reject parents’ choices on how they take their leave.  However, parents will have to get their employers’ agreement in order to take leave in a flexible manner rather than in one continuous block;
  • 4 weeks of the paid period of flexible parental leave will be reserved for the exclusive use of each parent to be taken in the first year.  It is hoped that this will encourage shared parenting.  However, in order not to reduce the total time currently available for mothers, an additional four weeks’ leave will be added on to the current entitlement so that mothers can still take a year off, giving 58 weeks’ leave in total for parents to share;
  • parents will be asked to provide self-certification notice of their leave.  The Government proposes to build on the existing arrangements for APL (these require that employees give two months’ notice of their intention to take leave); and
  • unpaid parental leave will continue to be available to parents.  The Government will remove the need for an individual to be employed for a year before leave can be taken.  The age of the child until which parents can take unpaid parental leave will be extended.  The Government is consulting on whether this extension should be until the child’s 8thbirthday, 12thbirthday, 16thbirthday or 18 birthday.
Annual Leave and Sick Leave

The Government is proposing changes to the Working Time Regulations 1998 (the Regulations).  These are intended to deal with the issues that have been raised by case law from the Court of Justice of the European Union (CJEU).

The Government proposes:
  • where a worker has been unable to take his annual leave due to sickness absence and it is not possible to reschedule the leave in the current leave year, they will be able to carry over the holiday leave into the next year.  However this will be limited to 4 weeks of annual leave required by the Working Time Directive (which is incorporated into the Regulations by Regulation 13). This means the employees who are on sick leave will not be able to carry over the additional 1.6 weeks given by Regulation 13A or any additional contractual leave.  When rescheduling annual leave, employers would be able to require that the leave is carried over to the next annual leave year, if there were good business reasons for this to be done; and
  • to amend the Regulations to make it clear that annual leave which is untaken due to maternity, paternity, adoption or parental leave can be carried over to the next annual leave year.  Employees will be able to carry over both 4 weeks of annual leave under Regulation 13 and the additional 1.6 weeks of annual leave under Regulation 13A.  As with sick leave, when rescheduling annual leave employers would be able to require that the leave is carried over to the next annual leave year, if there were good business reasons for this to be done.
The Government has also indicated that it is considering allowing employers to “buy out” the additional 1.6 weeks’ holiday entitlement under Regulation 13A if this is agreed between employers and employees.  The Government may also allow employers to require that this leave be carried over to the next annual leave year if there was a genuine overriding business need for this to be done.
The decisions of the CJEU have made it clear that statutory annual leave will continue to accrue during sickness absence.  The Government considered whether to limit this accrual to the leave under Regulation 13 but has decided that such a limitation would be too complicated.

Compulsory Pay Audits

The Government proposes to require tribunals which have found an employer to have discriminated because of gender in relation to contractual terms or non-contractual pay matters to order the employer to conduct a pay audit.  However, such an order would not need to be made where:
  • an audit has been conducted in the last three years;
  • the employer has another means (which is appropriate in the circumstances) of ensuring that the pay structure is non-discriminatory, e.g. clearly transparent pay structures; or
  • the tribunal does not consider it would be productive to order an audit in the particular circumstances.
The Government proposes further consultation on the scope of pay audits and whether they should be published.

There will be sanctions against employers who do not comply with the requirement to carry out a pay audit.  These could include:
  • allowing a future tribunal to take the failure into account when considering a future discrimination claim (by drawing an inference as to the reason for that failure);
  • making the failure to comply itself an act of unlawful discrimination;
  • making the employer subject to a criminal fine; or
  • making the employer subject to a civil financial penalty.

The Government intends to legislate on flexible working, flexible parental leave and pay audits as soon as it can within this Parliament.  Secondary legislation to amend the Working Time Regulations will be introduced soon and will be implemented by 2012.

The consultation, which closes on 8 August 2011, can be found on the BIS website by clicking HERE.


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