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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:
- 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.
- 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
- Within 14 days, the employer must make a decision about
whether to grant the application to work flexibly.
- 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.
- 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.
- 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.
- A decision must be made within 14 days.
- 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.
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