April 2003 marked a new dawn for family friendly policies. Legislation came into force which improved maternity rights, and introduced paid paternity and adoption leave, as well as a statutory right to request flexible working; Melissa Paz, Solicitor in the employment team at Withers LLP rounds-up the rights and obligations and spells out why these policies have not been the boon they were touted to be.

As HR professionals have experienced, there has been no shortage of demand for these rights. Extensive press coverage has meant that most of the UK workforce are aware of them and, according to the DTI’s Second Flexible Working Employee Survey 2005, nearly a quarter of working parents with young children have asked to work flexibly over the past two years.

However, the legislation has not provided the boon that many employees hoped for. Some managers have opposed the changes, arguing that they cause crippling expense and unnecessary paperwork. In a survey of more than 500 small firms conducted by NOP, about 30% said they were denying their staff the right to work flexibly, despite the threat of tribunal proceedings.

The tension between employees’ expectations and managers’ opposition has challenged HR professionals. Finding practical, cost effective solutions can be difficult.

However, with some thought, it is not impossible and will pay dividends in the long run.

The rights
The key family friendly rights introduced in April 2003 are set out below. In most cases, the rights are dependent on the individuals having been employed for a minimum period of time.

Improved maternity rights:

• The maximum period of maternity leave (ordinary maternity leave plus additional maternity leave) was increased to 52 weeks.




• Statutory maternity pay (‘SMP’) was extended from 18 weeks to 26 weeks.

Introduction of paid paternity leave:

• Fathers and husbands or partners (of either sex) of women with children (including adopted children) were given the right to two weeks’ paid leave to care for their children. This right co-exists with the right to 13 weeks’ unpaid parental leave, introduced in 1999.

Introduction of paid adoption leave:

• Adoptive parents were given the right to take up to 52 weeks’ adoption leave, paid at the same rate as lower rate SMP during ordinary adoption leave only.

New right to request flexible working:

• Men and women were given the statutory right to request flexible working in order to care for a child under six (or a disabled child under 18). It is important to remember that the new law requires employers to give due consideration to such requests, not necessarily to grant them.

The statutory right to request flexible working was arguably the most significant change to the law.

Previously, women only had complex indirect sex discrimination laws to fall back on to secure flexible working. This was unsatisfactory, not least because it left men out in the cold. A man could not complain about refusal to allow him to work child-friendly hours unless he could point to a woman in the same situation who was allowed to work such hours. The new law meant that men and women could address the issue directly. However, it fell short of giving men and women an absolute right to work with flexibility.

The pitfalls
Most employers comply (albeit sometimes reluctantly) with the changes to maternity, paternity and adoption leave rights. They are, however, fearful of flexible working requests, often rejecting them as a knee-jerk reaction. This can have serious consequences.

If a request for flexible working is ignored, the employee may complain to an employment tribunal under the new law and the employer can be required to reconsider and award compensation. This remedy is in addition to remedies under the sex discrimination legislation, which continues to protect (mainly female) employees who are refused such requests in order to look after their child.

Even when employers agree to requests for flexible working, employees can suffer disadvantages. For example:

• being taken less seriously by managers and being perceived as less committed to their career;




• being ‘passed over’ for promotion;




• working harder and longer hours on their working days to make up the time, causing stress; and




• being overlooked in relation to health and safety issues – for example, risk assessments for home workers can be difficult to arrange as this involves visiting the employee’s home.

HR professionals should be aware that failing to implement family friendly practices appropriately can lead to numerous claims, including sex discrimination and less favourable treatment under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

Practical tips
So, what should you do to avoid the pitfalls?

• Update staff handbooks and policy documents to ensure that these reflect current legislation.




• Train managers on family friendly policies, particularly dealing with flexible working requests.




• Encourage managers to see the benefits of flexible working and to avoid succumbing to stereotypical reactions that are not justified in practice. In my experience, managers often argue that agreeing to a flexible working request will open the floodgates, or have a detrimental effect on continuity. You can encourage them to think these arguments through. For example, allowing someone to work flexibly does not give others the automatic right to do the same. Indeed, it may be easier to refuse a request for flexible working if you have agreed to such a request in the past, and it is not workable to do so again.




• Think laterally in relation to requests for flexible working.


* Consider the array of possible flexible working arrangements, such as home working, compressed hours and job sharing. Suggest alternatives to the employee’s proposals, if appropriate.
* Suggest a temporary change, or a trial period, to quell managers’ fears that they will be ‘tied in’ to a permanent change.
* Suggest regular meetings with the employee to review the way their proposal is working, and encourage them to approach you if they feel they are not being treated fairly.




• Comply with all formalities in relation to the legislation and ensure that employees do the same. For example, an application for flexible working must be in writing and the employer must fix a meeting with the employee within 28 days of receiving such an application.




• When refusing a request for flexible working, consider which statutory grounds for refusal apply. Ensure that each of the grounds used are justified and explained fully to the employee, in writing. Also, tell employees about their right to appeal against the decision.

The family friendly legislation has brought the issue of flexible working to the fore, but changing our working culture will be a slow process. Employees who work flexibly can be long serving, highly productive and loyal members of staff. Convincing employers of this is not always easy. HR professionals can really add value by being creative and trying to find the middle ground.