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New Regulations for Parental Leave and Flexible Work

Understanding what the changes mean in practice*

DTI Poster - courtesy of VisMedia

The Employment Act 2002 introduced new employment legislation designed to help working parents. From 6 April 2003 parents with young and disabled children will have more new options for leave - including paid paternity leave and leave for adoptive parents - new arrangements for financial support, and a right to request flexible work to facilitate childcare.

This a summary of the main provisions:

  • Parents of children aged under 6 and of disabled children aged under 18 will have the right to apply to work flexibly. Their employers will have a duty to consider requests seriously.
  • Maternity leave will be increased to 26 weeks' Ordinary Maternity Leave (paid) and 26 weeks' Additional Maternity Leave (unpaid).
  • Standard statutory maternity pay will increase to £100 a week. In addition, changes to National Insurance threshold will mean that 60% of all UK firms will be able to claim back over 100% of the statutory maternity pay that they pay out - an increase of 10,000 companies.
  • A new right to two weeks' paid paternity leave within eight weeks of the birth of a child or the placement of a child newly-placed for adoption. Payment will be at the same standard rate as statutory maternity pay.
  • Adoption leave will be introduced for parents adopting a child newly placed with them. As far as possible, provisions for adoption leave will mirror provisions for maternity pay and leave.
  • Rules governing employers' handling of maternity leave will be simplified, and will also apply to the new paternity and adoption leave and pay rights.

According to the government:

"These new rights, together with existing rights to parental leave and time off for dependants, will provide parents with more choice to balance work and family life, whilst being compatible with, and beneficial to, business efficiency".

The right to request flexible work

Most of these provisions are quite straightforward, and employers should adapt their existing policies and practices to reflect the changes.  The right to request flexible work, however, breaks new ground and poses new challenges.

"The right to request flexible work and the duty to consider".  This is the phrase that sums up both the new right under law, and its limitation. We consider this in more detail in another article, Flexible work a right? Not quite. However, it is important to note that the new right for employees is a right to ask the employer to be able to work flexibly.  There is no obligation on the part of the employer to grant this right, only to consider.  The process stipulated is intended to introduce safeguards that will ensure the request is considered seriously, and that there will be no adverse impact on the employee for requesting it.

Types of flexible work

Under the regulations, employees can request to

  • change the hours they work;
  • change the times when they are required to work; or
  • work from home (whether for all or part of the week).

This covers most of the forms of time and location flexibility that we cover in Flexibility. Specific forms given as examples in the guidance are annualised hours, compressed working hours, flexitime, job-sharing, home working, shift working, staggered hours and term-time working. But it appears to be primarily up to the employee to come up with the appropriate option.

The changes made will be considered to be permanent, unless otherwise agreed. So the employee has no automatic right to change back to the previous working pattern.  And similarly, the employer has no automatic right to end the new working patterns.

Who is eligible?

A parent must meet the following criteria to be eligible to make a request under this right:

  • Be an employee.
  • Have a child aged under six, or under eighteen where disabled
  • Make the request no later than two weeks before the child’s
    appropriate birthday
  • Have responsibility for the upbringing of the child and be making the application to enable them to care for the child
  • Be either:
    • the mother, father, adopter, guardian or foster parent of the child; or
    • married to or the partner of the child’s mother, father, adopter, guardian or foster parent
  • Have worked for their employer continuously for 26 weeks at the date the application is made
  • Not be an agency worker or a member of the armed forces
  • Not have made another application to work flexibly under the right during the past 12 months.

The purpose of the request must be to enable the employee to participate in childcare arrangements.

The process

The process to be followed is set out quite clearly in guidance to accompany the legislation (see the box on the right). Basically, it works like this:

  1. It is up to the individual worker to make an application to work flexibly. They need to make the case for doing this, specifying the type of flexible work that would be involved, and how it would not have an adverse impact on the business of the employer.
  2. Within 28 days, the employer must arrange a meeting with the applicant to consider the application. The employee may be accompanied, but only by a colleague form the workplace
  3. Within 14 days, the employer must make a decision about whether to grant the application to work flexibly.
  4. If the application is granted, arrangements must be made to put it into practice. If not the following appeal process may come into play. The refusal must be based on valid business grounds, must be phrased in plain English and includes relevant and accurate facts. The business grounds must be from amongst the following reasons:
    • Burden of additional costs.
    • Detrimental effect on ability to meet customer demand.
    • Inability to reorganise work among existing staff.
    • Inability to recruit additional staff.
    • Detrimental impact on quality.
    • Detrimental impact on performance.
    • Insufficiency of work during the periods the employee proposes to work.
    • Planned structural changes.
  5. If the employee is dissatisfied with the employer's decision, he/she may appeal.  Initially this is an internal affair. The appeal should be in writing, setting out the reasons why the applicant thinks the decision is wrong.
  6. Within another 14 days the employer must arrange an appeal meeting. The employee may again be accompanied, but only by a colleague form the workplace.
  7. A decision must be made within 14 days.
  8. In the event of a refusal, if the employee does not accept the decision, he/she may appeal through any of the following 3 routes:
    • Employer's own grievance procedure
    • Acas arbitration scheme
    • Employment Tribunal

In case of dispute

Appeals can be made to the Acas Arbitration scheme or an Employment Tribunal only on the grounds of

  • incorrect procedure, or
  • incorrect facts used by employer.

There is no grounds for contesting the business case - the external bodies are not considered qualified to comment on these.

However, an employment Tribunal would also be able to consider claims relating to other legislation, such as sex discrimination, disability discrimination, racial discrimination or discrimination under the new Part-Time Workers regulations, if it was felt that these were connected with the refusal of a request to work flexibly.

* The summary presented here is provided as a general and educational outline.  It is not intended as legal advice, and should not be taken or used as such, or be used as the basis for business decisions, for which readers should rely on their own sources of legal and professional advice.

Important changes in the laws concerning family-friendly employment and flexible work come into force in the UK in April 2003.

Here we provide a summary* of the changes, in particular focusing on the new "right to request flexible work".

In 2 other articles we present a guidance to companies about how to respond, and our analysis of their strengths and weaknesses.

Further and more detailed information can be found on the following websites:

The Swiftwork e-zine, from work-life balance experts Swiftwork

The DTI Working Parents website

Detailed guidance on flexible working right of request (pdf file, 1,606 kb) from DTI website

Acas - the Advisory, Conciliation and Arbitration Service (spelt with only one capital letter, for reasons unknown) has information on events, dispute procedures and their advice line.

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