Less red tape? Not really…
Modern Workplaces consultation
What we knew already: the Government wanted to introduce a new system of shared parental leave and was considering extending the right to request flexible working to almost all employees. The consultation on those changes has now been published.
What we didn’t know about: the consultation is far wider than expected, seeking views on:
1. requiring employers who lose an equal pay claim to publish equal pay audits, and
2. proposals to change the interaction of the annual leave provisions of the Working Time Regulations 1998 with sick and family-friendly leave.
The ‘Modern Workplaces’ consultation runs until 8 August 2011.
Apparently the Government intends to legislate on flexible parental leave, flexible working and equal pay in this Parliament, as soon as possible. Amendments to the Working Time Regulations are likely to be implemented in 2012.
Employers of a weak disposition may want to look away now – the proposals are far-reaching to say the least…
“Parental” leave – the entitlement formerly known as maternity / paternity / adoption leave
The parental leave proposals envisage the initial portion of leave still being reserved to the mother, but that much of it will be shared as the parents see fit. Specifically:
- 18 weeks’ maternity leave would be available to be taken in a continuous block around the time of birth. The current statutory maternity pay and maternity allowance arrangements for this period, and two weeks’ (ordinary) paternity leave and pay, would be retained;
- the remaining period of existing maternity leave would be rebadged as parental leave. Each parent would have four weeks’ paid leave exclusive to them, with the remaining weeks available for either parent on an equal basis (similar provisions will apply for adopters and same-sex couples); and
- the existing right to unpaid parental leave after the first year of the child’s life would be retained under the new regime.
The consultation also considers whether to extend the limit for taking unpaid parental leave beyond the child’s fifth birthday, and whether fathers should have the right to unpaid leave to attend ante-natal appointments. The proposed changes to parental leave would not be in effect before 2015.
Right to request flexible working
It is proposed that flexible working be made available to all employees employed for 26 consecutive weeks.
The existing statutory process for considering requests would be replaced with a duty to consider requests ‘reasonably’ (supported by a new code of practice).
Employers would be permitted to prioritise competing requests to take account of the employees’ personal circumstances. If refusing an application, employers would still have to show that the competing requests could not be accommodated on business grounds.
Currently, employees may make only one request for flexible working in any 12-month period. The consultation seeks views on allowing an additional request within 12 months if the employee’s original request states it is only expected to be a temporary arrangement, and whether the extension should apply to small businesses or start-ups during the moratorium on new regulation.
Working Time Regulations
Current case law has established that workers unable to take their annual leave in the leave year due to sickness absence or maternity or parental leave must be able to carry it forward into the following leave year. This is, in essence, to be enshrined in law so that:
- an individual who has been on sick leave may only be permitted to carry over the four weeks’ leave required under the Working Time Directive (the good news is that this would exclude the additional 1.6 weeks’ leave given by the UK Regulations and any further contractual leave); and
- it will be possible to require that leave not taken due to sickness absence is taken in the current leave year or may be deferred by the employer until the following year if dictated by business need.
The consultation also considers improving flexibility for employers around the operation of statutory annual leave. By way of example, employers could opt to ‘buy out’ the additional 1.6 weeks or require employees to defer that leave until the first six months of the following leave year (again, if business need required it).
Equal pay audits
Last but not least, employers found to have discriminated on the ground of sex with regard to pay may face a mandatory equal pay audit unless the tribunal were satisfied that it would not be productive to do so because:
- an audit had been conducted in the preceding three years;
- the employer has other appropriate means of ensuring a non-discriminatory pay structure; or
- the particular circumstances mean it would not be productive.
Participants in the consultation are invited to express a view on the appropriate sanction for a failure to comply with a mandatory audit.