Modern workplaces: the new landscape for parental leave

In May 2011, the government published its Consultation on Modern Workplaces, which sets out a new framework for maternity leave and parental leave. The aims were to give parents a 'real choice over balancing careers and family responsibilities', recognising the important role that fathers can play in a child's early life and giving women the opportunity to return to work if they wish.

Now, 18-months later, the government has responded to the consultation paper with a range of proposed changes to parental leave, most of which are due to take effect in 2015.

There is currently a 52 week period of maternity leave. Provided certain eligibility conditions are met, the leave is generally paid for the first six weeks at 90 per cent of pay, the next 33 weeks at the statutory maternity pay rate (which changes each year) and the last 13 weeks unpaid. There are currently no proposals to change the system of pay.

Fathers can take two weeks of paid paternity leave within 56 days of the birth. Provided the mother returns to work, the father can, from 20 weeks after the birth, take on the remainder of the mother's pay and leave (known as additional paternity leave).

Flexible leave

The government proposes a new system of 'flexible parental leave'. The overall period of leave will remain at 52 weeks (with the first two weeks after the birth reserved, as currently, for the mother).

The remaining 50 weeks can be shared by the parents as they wish: one parent can return to work or they can take leave concurrently. Leave can be taken in one block or in multiple blocks of no less than one week at a time. This represents a change from the consultation paper which proposed that the first 18 weeks would be taken by the mother, with the remaining 34 weeks being shared.

If parents are unable to agree with their employer which periods of time may be taken as leave, then the default position is that the leave will be taken in one continuous block from a date to be specified by the employee. New rights will be introduced for fathers to attend up to two ante natal appointments (unpaid).

Whilst not discussed in this article, rights for adoptive parents will be aligned with those of birth parents. Parents of children born through a surrogacy arrangement will, for the first time, have rights to take leave.

From March next year, unpaid parental leave will be extended from 13 to 18 weeks per child under five (then extended to children under 18 by 2015). Also from 2015, the right to request flexible working will be extended to all. Currently, the right only applies to parents of children under age six '“ 18 if the child is disabled '“ and certain carers.

Changing attitudes

The government certainly appears to be making a greater commitment to changing the culture of women as primary child-carers during a child's early years '“ although it recognises that attitudes cannot be changed overnight. Certainly, fathers will be able to have more involvement in the early weeks of a child's life.

The ability for parents to take leave concurrently enables more even sharing of parental responsibilities. However, financially, it is possible that many parents will simply be unable to share the leave.

There is no doubt that the government is trying to create a more flexible system of leave. There will no longer be a requirement for the mother to return to work as a pre-condition to the father taking his leave. The system will also see an improvement on the current system of ten 'Keeping in Touch' days, which enable a mother to return for specific training, work or other contact with the workplace without bringing her leave to an end. The new proposals will, in theory, allow mothers to return to work for blocks of time of a minimum of one week to get involved in specific projects without their leave coming to an end. Employers will have the right to veto the proposed working pattern, though, and this might prove an obstacle. If the new system is successful in facilitating earlier contact with the workplace, this could minimise breaks in employment for women and reduce the effect of longer periods of leave as an impediment to career progression.

Grievances

The Federation of Small Businesses comments that the new proposals would put a disproportionate strain on small businesses. At present, employers need to prepare for a continuous period of absence, and to get cover for a specific period of time. While this period may change (as a woman can request to return to work early from leave, on giving eight weeks notice) the employer usually has some expectation of what arrangements need to be put in place to cover leave and for how long they might be required.

The right to request to take time off in blocks could, therefore, be disruptive and temporary arrangements might be difficult to put in place. However, the employer can veto the proposed leave pattern if it wishes.

A clear system will need to be defined about how and when requests to take leave can be made and on what basis requests for blocks of leave can be rejected. Employers may face grievances from employees who are dissatisfied with the way that their requests are handled. For example, if the employer is able to accommodate one employee's desired work pattern, but not another's.

The government is consulting in the New Year on the administrative framework that underpins the new proposals. In the meantime, the overview that we have in the consultation response appears generally positive for parents, whilst raising question marks about the practicalities for employers.