Over recent years, the Government has put in place various ‘family friendly’ legislation in an attempt to promote work/life balance and in recognition of the fact that parents frequently are required to juggle their work commitments with their childcare and family life. We will address the specific issues of maternity, paternity and adoption leave in the next edition: ‘M’ is for Maternity rights, including the various changes to maternity and paternity rights as set out in the Working Families Act 2006. However, the following is a summary of the main areas of English law relating to employed parents of which HR advisors should be aware.
From 6th April 2007, under the Work and Families Act 2006, the existing right of parents of children under 6 years of age (or parents with disabled children under 18 years of age) to request to work flexibly will be extended to carers of other dependents. Therefore from April 2007 this could include children of whatever age if they are living at the same address as the employee or are a ‘near relative’ of the employee.
The right to request to work flexibly is not a guaranteed right to flexible working. This right is restricted to one application per year per employee. The procedure has not changed since the right was created in April 2003, therefore the following is a recap of the process:
- In order that an employee be eligible to apply to work flexibly they must be an employee, with a child under the age of 6 (or a disabled child under the age of 18). The employee must either be the child’s mother, father, adopter, guardian or foster parent, or be married to or be the partner of the child’s mother, father, adopter, guardian or foster parent, or from April 2007, be a near relative or in the same household as the child.
- The employee must have completed 26 weeks’ continuous employment with their employer and must not have made an application to work flexibly within the last twelve months.
- The eligible employee must make a written application to the employer, which the employer must consider. The employee may request an alteration to the number of hours they work, an alteration to the times they undertake their working hours or a request to work from home.
- The employer then has 28 days within which to meet with the employee and discuss the application and the best way to accommodate it. The employee is entitled to be accompanied at this meeting by a fellow employee of the employer.
- The employer then has fourteen days from the date of this meeting to write to the employee stating whether the employer is willing to agree to a new pattern of work and to communicate the date from which this new pattern will commence. If the employer does not agree to the proposed change in working pattern they must explain this and provide clear business reasons as to why the application cannot be accepted and the reason why the grounds apply in the circumstances. This letter must also explain the appeal procedure.
It is possible to increase all the above time periods as long as both the employee and employer agree. It is best to have any extension agreed in writing.
The employee has a right to appeal against their employer’s decision within fourteen days of being informed of this decision. The usual practices relating to appeals apply, and it is preferable to have the appeal heard by a more senior individual than the individual who made the initial decision. In some cases there may be grounds to continue their appeal process by means of a third party, such as referring their claim to ACAS or to an employment tribunal.
It should be noted that the right to request to work flexibly is not restricted to caring for children but from April 2007 will include caring responsibilities for certain categories of adults provided the employee falls within the definition of a carer for the adult concerned. For these purposes the employee must be ‘caring or expecting to be caring for an adult who: is married to, or the partner or civil partner of the employee; of is a near relative of the employee; or falls into neither category but lives at the same address as the employee.’
Employees with the parental responsibility for a child who is under 5 years of age (or a disabled child who is under 18 years of age) and who have been continuously employed for a minimum of one year have the right to a period of parental leave. Parental leave is unpaid. Parental leave is also available to adoptive parents of children up until the fifth anniversary of the date the child was placed with the employee.
The employee is entitled to a maximum of 13 weeks’ parental leave for each child, this is increased to a maximum of 18 weeks for a disabled child. Part-time employee’s entitlement is calculated on a pro rata basis. Unless a more generous collective scheme is negotiated the default scheme applies which states that an employee cannot take more than four weeks’ parental leave per child per year. The default scheme also stipulates that this leave should not be taken in blocks of less than one week. Exceptions apply for employees with disabled children.
Time off for emergencies
All employees are entitled to a reasonable period of unpaid time off to care for dependents in emergencies. This covers situations whereby the employee needs to provide assistance or make care arrangements for a dependent who is ill, has given birth or is injured, or where there has been a death of a dependent or unexpected incidents arise involving the employee’s children while they are in school.
Dependent is defined as a spouse, child, parent or person who lives in the same household as the employee (excluding persons who live with the employee for commercial reasons, such as a tenant or lodger) or who reasonably relies on the employee for assistance (such as an elderly neighbour living alone).
The employer must inform the employer the expected duration of time needed off work and must explain the reason as soon as is reasonably practicable. What length of time will be deemed reasonable will depend on the circumstances, but such time should be limited to dealing with the immediate crisis and putting in place arrangements for someone else to care for the dependent.
If an employer refuses to allow the employee time off in such circumstances, the employee is entitled to complain to an Employment Tribunal within three months of the refusal complained of. The Employment Tribunal may award such compensation as it deems just and equitable in the circumstances for any resulting loss.