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Alexandra Mizzi

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Legal commentary: what extension of parental leave means for HR

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HR professionals will be more than familiar with the complex array of legal rights enjoyed by working parents – dealing with maternity leave and flexible working requests can consume huge amounts of time.

However, parental leave tends to be something of an afterthought – take –up rates are low and employee awareness of the right is limited.  One might be forgiven for thinking that the changes to parental leave announced recently are unlikely to have a major impact.  

However, these changes are just the first step in a whole raft of Government reforms aimed at making workplaces more family-friendly.  

Parental leave – the law
 
The key points of the current law are:
  • Employees who have one year’s service and are responsible for a child have the right to take unpaid parental leave in order to care for that child.  Being ‘responsible for a child’ does not require formal legal parental responsibility and in practice includes biological parents, adoptive parents, surrogate parents and guardians.
  • Employees responsible for a disabled child have slightly more generous rights.  A disabled child is a child who is entitled to disability living allowance.
  • Eligible employees can take up to 13 weeks’ leave for each child before the child’s fifth birthday or, for disabled children, 18 weeks’ leave, which they can take at any time before the child’s eighteenth birthday.  
  • The employee must give their employer at least 21 days’ notice that they intend to take the leave and must take the leave in blocks of 1 week (unless the child is disabled). 
  • Employees who take parental leave are entitled to return to the same job (or, in some cases, a suitable alternative job) after taking such leave.  The key terms and conditions of the employment contract (other than terms relating to pay) remain in force while the employee is on parental leave.   
  • Employers are free to grant more generous rights to their employees, but can only offer a less favourable scheme if elected employee representatives or a recognised trade union agree to it. 
The changes
  • From today (8/03/2013), the parental leave entitlement will be increased to 18 weeks’ leave in respect of all children.
  • In addition, the right to request flexible working will be extended to agency workers who are returning from parental leave.

In the pipeline…

In response to a survey conducted by the Department for Business, Innovation and Skills last year, only 11% of employees with a child younger than six reported that they had taken parental leave.   This change may, therefore, make little difference on its own.  
 
However, it is part of a programme of reforms aimed at helping parents to remain in work and encouraging parents to share childcare duties more evenly, rather than mothers bearing the brunt. 
 
Over the next few years, the Government plans to introduce the following measures: 
 
  • The right to request flexible working will be extended to all employees with 26 weeks’ service;
  • A new code of practice on flexible working will be introduced; and
  • Most dramatically, parents will be able to ‘share’ maternity leave between them, rather than the child’s mother taking the full 52 weeks’ leave.  Rather confusingly, this will be called ‘shared parental leave’.   
The flexible working changes are expected to come into force in 2014 and the new shared parental leave in 2015, although a definitive timetable has not yet been announced.    
 
Public consultation on the new ACAS code and the administration of shared parental leave began on 25 February 2013.  Although the reforms are well-intentioned, they seem likely to create headaches for many businesses and at the very least will require a culture shift.  
 
In particular, flexible working can highlight conflicts between business requirements and employees’ needs, and between the competing needs of individual employees.  The draft ACAS code gives no guidance on how businesses should prioritise competing requests for flexible working and requires businesses to start from the presumption that flexible working requests will be granted.  This will require many businesses to change their approach.
 
Similarly, shared parental leave will mean that businesses can no longer expect that male employees with children will take only a short period of paternity leave, particularly where the mother is the primary earner.  Again, although the principle of shared parenting will be largely uncontroversial, in practice this will require businesses to revise their assumptions about the working patterns of their employees.   

Planning for the future
 
In the short-term, businesses will need to ensure their policies are updated to reflect the changes to parental leave.  However, the real challenge is to ensure that the business is adequately prepared for the longer-term changes to flexible working and introduction of parental leave.  
 
Alexandra Mizzi is an Associate at HowardKennedyFsi
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