Flexibility for working parents

Despite a number of family related rights being available, working parents nevertheless often struggle when trying to balance their family and working commitments. The government have given a commitment to address this issue and, as a consequence, a number of family friendly related rights will be updated or introduced to the statute book from April 2011. In particular: the introduction of additional paternity leave, allowing both parents to share the 12 months of leave that until now has been limited to the mother; an extension to the right to request flexible working to employees with children under age 18; and an increase to the rate of statutory maternity, paternity and adoption pay.

Additional Paternity Leave (“APL”)

The introduction of APL by virtue of the Additional Paternity Leave Regulations 2010, provides the most significant of the changes due in April. There has been talk for many years about parents being able to share maternity leave, although many colleges will be blissfully unaware that this is about to become a reality.

As a consequence of this new right – which applies to women as well as men – colleges may find themselves with a number of staff seeking to take up to six months of APL. Provided the employee meets the eligibility requirements and provides the required notifications, colleges will not be able to refuse to let them take this leave without falling foul of the legislation and facing potentially expensive tribunal litigation. Therefore whilst APL provides great flexibility for parents, colleges may not see the new right in such favourable terms.

What is APL?

Since April 2003, eligible employees have only been entitled to take up to two weeks of paternity leave within 56 days of a child’s birth or adoption placement (known as “ordinary paternity leave”). This right will remain, but for eligible employees a new right (known as “additional paternity leave”) will become available in respect of babies born (or matched for adoption) on or after 3 April 2011, which will allow the other parent to have the benefit of the balance of leave and statutory pay provided the mother or adopter returns to work before the end of her 12 months maternity leave period.

The introduction of APL will allow working parents more scope to share the year’s worth of leave immediately following the birth or adoption of a child rather than this be limited only to one parent. It remains to be seen how much take-up there will be, but the availability of APL provides a helpful potential solution for families – particularly if the mother is the main breadwinner and it makes more financial sense as a family for her to return to work whilst still allowing one parent to remain at home with the new arrival.

APL – eligibility criteria

The eligibility criteria for APL largely mirror the eligibility criteria that apply to those wanting to take the two weeks of ordinary paternity leave. To be eligible to take leave after the birth of a child, the employee must:

• have continuous employment of 26 weeks ending with the relevant week (which is the week immediately preceding the 14th week before the child is due to be born),

• remain in continuous employment until the week before their first week of APL;

• be the child’s father or be married to the partner or civil partner of the child’s mother; and

• have or expect to have the main responsibility (with the child’s mother) for bringing up the child.

In addition, the child’s mother must:

• be entitled to maternity leave and statutory maternity pay or maternity allowance; and

• have returned to work, or be deemed as having done so by virtue of their maternity leave and entitlement to maternity pay having come to an end.

The eligibility criteria are broadly similar where APL is being sought after the adoption of a child.

APL – notice and evidential requirements

An employee wishing to take APL after the birth of a child must give their employer at least eight weeks notice of the date on which they would like the leave to start. Therefore, unlike with pregnant female staff taking maternity leave, employers will have much less time to prepare for APL absences.

An employee wanting to take APL must also provide:

• a written notice stating the chosen start and end dates they wish to take as APL, the child’s expected week of childbirth and date of birth;

• a signed employee declaration confirming they meet each of the eligibility criteria;

• a written declaration from the child’s mother stating:

1. her name, address and national insurance number;
2. the date on which she intends to return to work;
3. that the employee is the child’s father, or her spouse partner or civil partner;
4. to her knowledge that the employee is the only person exercising a right to APL in respect of the child; and
5. she consents to the college processing the information she has provided.

Essentially, the employee and mother’s declarations respectively leave a college having to take it on trust that the information provided in the declarations is correct. Colleges do, however, have the right to request a copy of the child’s birth certificate and the name of the mother’s employer – the latter of which could be used to make enquiries over whether the mother has in fact returned to work.

Again, the requirements are broadly similar where APL is being sought after the adoption of a child.

When can APL be taken?

APL should be taken in complete weeks and for a minimum of 2 weeks up to a maximum of 26 weeks.

APL cannot be taken until 20 weeks after the baby has been born or placed for adoption and cannot be taken 12 months after the date of birth or placement.

Only one period of APL can be taken following a birth or adoption placement, regardless of the number of children born/adopted at the same time.

An employee wishing to return to work from APL sooner than expected must give at least six weeks’ notice – illogically two weeks less than the eight weeks’ notice that a mother is required to give if she wishes to return from maternity leave earlier than expected.

Terms, conditions and rights during APL

The rights available to those on APL largely mirror the rights available to a mother on maternity leave:

• Continuation of all employment terms and conditions save for those relating to remuneration (Employment Rights Act 1996 s80C(1)(b); Additional paternity Leave Regulations 2010 reg 27(1)).

• Additional Statutory Paternity Pay (ASSP) will be paid at the lesser of 90% of the employee’s normal working pay and the prescribed government rate (see below) to the date that would have been the end of the mother’s statutory maternity pay period. By way of example, if the mother returns to work after 26 weeks of maternity leave, the employee will have the benefit of 13 weeks of ASSP.

• The right to ten Keeping In Touch Days, at their normal remuneration (Additional Paternity Leave Regulations 2010 reg 26).

• The right to return from APL to the job they were employed in before they went on leave – although in some circumstances this right is limited to only where it is reasonably practicable to return to that job and where it is not, they have the right to a job which is suitable and appropriate in the circumstances (Additional Paternity Leave Regulations 2010 reg 31)

• A priority to alternative vacancies in a redundancy situation (Additional Paternity Leave Regulations 2010 reg 26).

• Protection from detrimental treatment or dismissal for reasons connected to taking, or seeking to take, paternity leave, with a remedy of compensation of such amount as the tribunal considers just and equitable in all the circumstances where such detriment or dismissal occurs (Employment Rights Act 1996 s 49(1)(b) and s49(2))

Rates of statutory pay

The minimum amount of maternity, paternity or adoption pay that is payable to an eligible employee is linked to a prescribed rate that it set by the government each April to coincide with the new tax year. As of 11 April 2011, the prescribed rate is £128.73. Until that time the prescribed rate is £124.88.

Recommendations

Colleges should revisit their policies and procedures on maternity and paternity leave, and update these to set out the right to additional paternity leave. Not only will this provide a useful point of guidance for employees wanting to understand their rights, but also for managers faced with staff seeking to take paternity leave.

Flexible working

The right to request flexible working came into force in April 2003, and at first only those with children under the age of six (or disabled children under 18) qualified. That right has subsequently been extended and currently applies to those employees with children under the age of 17 or who look after adults in need of care. A further extension will take effect from 6 April 2011 as a consequence of the Flexible Working (Eligibility, Complaints and Remedies)(Amendment) Regulation 2010, when the right extends to parents with children under 18, and the coalition government has indicated an intention to further extend the right to all employees in due course – although it remains to be seen whether this ever comes to fruition.

• Save for extending the age of children to whom a request can relate, and therefore increase the number of employee’s eligible to make a request, the rules relating to flexible working requests remains unchanged. By way of a reminder, the key issues are:

• The request must be made by an employee who has at least 26 weeks of continuous service at the date of the application and has not made a request in the preceding 12 months.

• The right to request flexible working is just that – it does not give a right to actually work flexibly.

• Requests for flexible working are often agreed informally between an employer and employee, but where the formal procedure is invoked, the process is highly prescriptive with strict timescales for compliance with the various stages which can only be extended by mutual agreement.

• The scope for turning down a request for flexible working is limited, with the reasons for rejection being limited to non-compliance with eligibility or procedural requirements, or one or more of the reasons prescribed in the legislation:

1. (i) burden of additional costs;
2. (ii) detrimental effect on ability to meet service user demand;
3. (iii) inability to reorganise work among existing staff;
4. (iv) inability to recruit additional staff;
5. (v) detrimental impact on quality or performance;
6. (vi) insufficiency of work during the periods the employee proposes being at work; or?(vii) planned structural changes.

• Rejecting a request for flexible working and relying on any particular ground(s) should not be taken lightly as, where challenged, employers will be required to properly justify why that ground has been relied upon. They should not merely be seen as “excuses” without proper evidence to support the business rationale. Care also needs to be taken to avoid discrimination when dealing with requests. This includes not only dealing with all applications in the same way, but also being mindful of any indirect discrimination issues which may arise from turning a request down notwithstanding having a legitimate business reason under the legislation.

• It is unlawful to dismiss, or cause any other detriment to an employee for having made a flexible working request.

• A failure to deal with a request properly, or at all, could lead to potentially expensive Employment Tribunal proceedings as the Tribunal can award:

1. Up to 8 week’s pay as compensation where a decision to reject an application was based on incorrect facts, or where the incorrect procedure was followed (e.g. failing to follow the prescribed timescales or provide the requisite information)
2. A reconsideration of the application
3. Up to 2 week’s pay in addition if there was a failure to allow the employee to be accompanied to a meeting
4. Potentially unlimited compensation, including an award for injury to feelings, if the handling of the request or the basis for turning it down, was discriminatory
5. Compensation for detriment or unfair dismissal.

Claire Wilkins is an education solicitor specialising in immigration at Veale Wasbrough Vizards and can be contacted on 0117 314 5274 or at [email protected]