Hard(y) Law Talk: Parental rights at work – whatever next?

Annie Hayes

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Hard(y) Law Talk: Parental rights at work – whatever next?

By Annie Hayes

Alongside, fire exits and caution signs, required under health and safety law, every workplace should display a new sign: ‘Danger: parents at work!’ given the controversy that so-called family-friendly policies are still yielding.

Parental rights:
To clarify, the rights which parents have include:

Maternity leave and pay: 26 weeks paid and 26 weeks unpaid, additional maternity leave if one year’s continuous employment.

Paternity leave and pay: two weeks paid leave for father of the child.

Adoption leave and pay: 26 weeks’ ordinary adoption leave (OAL) followed by up to 26 weeks’ additional adoption leave for those with one year’s continuous employment.

Flexible working request: parents (or other individuals with parental responsibility) of children (under six years old) or disabled children (under 18 years old).

Parental leave: 13 weeks’ unpaid leave for the purposes of caring for a child before its fifth birthday.

So why all the case law and plethora of complaints about parents taking too much time off!

Personnel pitfalls:
Although the changes implemented in 2003 have been designed to simplify the law and to formalise benefits that may already be offered by certain employers, practitioners will be aware that until the changes have bedded down some complexities remain, such as:

The enhanced maternity leave and the introduction of adoption and paternity leave required employers to be creative and flexible in managing the workforce, and the varying periods of absence to which men and women will be entitled.

Employees are protected from detriment/dismissal as a result of exercising their family rights, and consequently employers need to manage periods of leave carefully in order to balance the needs of the business and of the employees, whilst at the same time trying to avoid any Tribunal claims.

In addition, cases concerning the payment or withholding of bonuses do not appear to reach Tribunals very often and consequently there is at present little case law to guide employers and legal advisers.

The right to paternity leave may give rise to fraudulent claims because, unlike maternity leave, it is based on self-certification regarding impending fatherhood or entitlement. Employers will need to be alert to this, no doubt in the same way as they currently are with parental leave claims.

Abuse of the right should be classified as misconduct under the employer’s disciplinary policy so that appropriate action can be taken in the event of suspected abuse.

Lastly, working mothers are to be offered an extra three months’ paid maternity leave – worth almost £1400, plans currently under consultation by the DTI. These proposals build on the government’s successful package of family friendly working rights, and commitments made in the 2004 Pre-Budget report. The consultation includes proposals to:

Extend maternity pay and adoption pay from six months to nine months by April 2007 with the goal of a year’s paid leave by the end of the next Parliament;

Introduce a new right for mothers to transfer a proportion of their maternity leave and pay to fathers to give more choice to mums and dads when caring for their children in the first year;

Consider extending the right to request flexible working hours to carers of adults and parents of older children;

Simplify the administration of maternity leave and pay for employers, including whether the government should pay parents direct through the Inland Revenue.

To that end, HR practitioners need to ensure equal treatment amongst employees, whilst reminding themselves and upholding the statutory rights available to parents as part of the drive for ‘family-friendly’ workplaces.

<i Dr Stephen Hardy is Senior Lecturer in Law at the University of Manchester and a Barrister specialising in Employment and EU Labour law … and parent to Dominic (5) and William (3).

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