Update on family friendly policies and flexible working families and pregnancy

April 3, 2014

Children and Families Act 2014

The Children and Families Act 2014 received Royal Assent on 13 March 2014 and introduces a new regime of shared parental leave as well as extending the right to request to work flexibly to all employees.

Shared parental leave and pay

The Children and Families Act 2014 provides a power for the Secretary of State to make regulations relating to the new system of shared parental leave and pay. 

The Government is currently seeking views on three draft statutory instruments which will implement the new shared parental leave and pay system. The draft Shared Parental Leave Regulations 2014 contain the proposed provisions for employees who are mothers, fathers, adopters, or the partners of mothers or adopters, to take shared parental leave in the first year of their child’s life or in the first year after the child’s placement for adoption. The relevant provisions will be incorporated into the Employment Rights Act 1996. The draft Statutory Shared Parental Pay (General) Regulations 2014 put in place the entitlement to pay in respect of such shared parental leave. In order to take shared parental leave, eligible women would need to curtail their statutory maternity leave under the draft Maternity and Adoption Leave (Curtailment of Statutory Rights to Leave) Regulations 2014. There is an equivalent right for adopters.

The key proposed changes in the implementing legislation are as follows:

  • parents will be able to share 50 out of 52 weeks of statutory maternity leave and 37 out of 39 weeks of statutory maternity pay (mothers will retain 2 weeks of mandatory maternity leave and fathers will also have a separate entitlement to 2 weeks of statutory paternity leave);
  • parents will be able to share statutory adoption leave;
  • shared parental leave can either be taken by each parent consecutively, or by both parents concurrently, as long as the combined amount of leave does not exceed the amount which is jointly available to the couple;
  • leave can be taken in a continuous period or in discontinuous periods but in blocks of at least a week at a time;
  • if employees would like to take the shared parental leave as discontinuous blocks of leave, this must be agreed in advance with their respective employers. If agreement cannot be reached, employees can elect to either (a) withdraw their notice of taking leave or (b) take their flexible parental leave in a single block commencing on a date of their choice;
  • additional paternity leave and additional paternity pay will be abolished (since fathers will be expected to take the new shared parental leave instead);
  • there will be no extension to statutory paternity leave or pay, although there will be a legislative power to extend statutory paternity rights; 
  • the first six-weeks of statutory adoption pay will be at 90% of earnings bringing statutory adoption pay in line with statutory maternity pay;
  • fathers will be entitled to unpaid time off to attend two antenatal appointments (in force from 1 October 2014); and
  • adopters will be entitled to unpaid time off to attend appointments to meet the child they intend to adopt (in force from 1 October 2014).

Right to request flexible working

The Children and Families Act 2014 amends the Employment Rights Act 1996 to extend flexible working rights to all employees with 26 weeks' service, rather than just those employees who qualify as parents or carers. 
ACAS has published a final draft Code of Practice to support the removal of the statutory procedure and extension of the right to request flexible working and a good practice guide to supplement the Code (see http://bit.ly/1eivSJB).

The key changes are:

  • the right to request flexible working will be extended to all employees with at least 26 weeks' continuous employment;
  • employers will no longer need to follow the statutory procedure contained in the Flexible Working (Procedural Requirements) Regulations 2002 (SI 2002/3207). Instead, they will be allowed to use their own HR procedures; 
  • but they must consider requests in a “reasonable” manner;
  • the employer must notify the employee of its decision within three months (including of appeal outcome), unless an extension is agreed with the employee;
  • the final draft Code remains short and "principles-based":
    • the introduction to the Code includes reminders that an employee can only make one statutory request in any 12 month period;
    • the Code contains sections with helpful summaries of eligibility criteria and requirements for the contents of the request;
    • the suggestion that an employer "should always approach requests to work flexibly from the presumption that you will grant them unless there is a business reason for not doing so" has been removed. This was because of concern from those responding to the consultation that this could mislead applicants into believing that approval was almost certain and would therefore also be unhelpful to employers;
    • the Code now refers to the need to weigh the benefits of the requested changes for the employee and the employer's business on the one hand, against any "adverse business impact" of implementing the changes on the other hand. Previously the drafting had been narrower and referred balancing the request against the cost of implementing the changes; 
    • the Code sets out the eight existing business reasons for rejecting a request set out in section 80G(1)(b) of the Employment Rights Act 1996, which still apply. The original draft Code had only included a summary.
    • an employer is entitled to treat an application as withdrawn when an employee fails to attend a meeting to discuss the application (including any appeal) as well as a rearranged meeting without a good reason.
    • as with other ACAS Codes the Code will have statutory force and will be taken into account by employment tribunals when considering relevant cases.

Dates for implementation

  • 30 June 2014: flexible working will be extended to all employees with 26 weeks' service; 
  • 1 October 2014: fathers and partners will be able to take time off to attend up to two antenatal appointments;
  • 5 April 2015: shared parental leave provisions come into force in relation to parents of babies due or children placed for adoption on or after 5 April 2015. Protection from unfair dismissal or detriment in relation to the exercise or proposed exercise of such rights is expected to be in force from 1 October 2014;
  • 5 April 2015: Adopters' pay and leave entitlements will be brought into line with those of birth parents.

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