UK: Employment Act 2002 - "Family Friendly" Provisions

New Rights for Parents

The Employment Act, which has only recently been enacted, provides new rights for fathers to take paternity leave and, for couples adopting a child, the right for one of the couple to take adoption leave. The Act also provides for new rules on maternity leave and pay.

The paternity leave provisions will allow fathers to take up to 2 weeks’ paid paternity leave. It must be taken within a period of 56 days beginning with the date of the birth or the child being placed for adoption. Paternity and adoption leave will only be available to employees, who have continuous service with the same employer for at least 26 weeks by the 15th week before the child is expected to be born, or, by the week in which an agreed match for adoption is made. The wording of the draft Regulations is such that the parental and adoption leave provisions will extend to co-habiting and same sex partners.

The adoption leave provisions will mean that employees will have a right to take 26 weeks "ordinary" adoption leave, followed by 26 weeks unpaid additional adoption leave. The employee seeking adoption leave must produce a Matching Certificate from an approved adoption agency. The adoption can be of a child from overseas, but the child placed for adoption must be under 18. The leave can begin no earlier than 14 days before the expected date of placement and no later than the date on which a child is placed for adoption.

Employees taking either paternity or adoption leave will have the same employment protection rights as mothers returning from maternity leave. The rates of pay for paternity leave and ordinary adoption leave will be the lesser of £100 or 90% of the employee’s average weekly earnings.

One of the main changes to the maternity leave provisions is that ordinary and additional maternity leave will be extended from 18 to 26 weeks. There will continue to be no service requirement for the right to take ordinary maternity leave, though the qualifying service requirement to take additional maternity leave will be 26 weeks. The service requirement for maternity pay will continue to be 26 weeks. Statutory maternity pay will increase to the lesser of £100 or 90% of the employees average weekly earnings from 6 April 2003.

Employees wishing to take maternity leave will need to notify their employer by the 15th week before the expected week of childbirth. All notice periods, e.g. on changes to the start of maternity leave or with the expected return date, will be 28 days.

All these rules are due to come into effect on 6 April 2003.

The Employment Act will also, from April 2003, give employees the right to request flexible working. Although there will be no automatic right to flexible working, the Act states that employers must give proper consideration to this type of request from employees.

The right will be available to all employees, who are parents or have responsibility for a child aged under 6, or disabled children aged under 18, and who have 26 weeks’ continuous service with the same employer. Draft Regulations state that the right will extend to those who are guardians or foster carers, or their spouse or partner. The request must be within 14 days of the 6th or 18th birthday.

The change may be to the hours or time when the employee is required to work, the place of work or any other aspect of the employment terms that are to be set out in Regulations. The formal request must: be in writing; set out the working pattern; specify the date from which it is to become effective; and set out what effect it may have on the employer and how it could be dealt with. Employees are only allowed one request every 12 months.

Employers must then arrange a meeting within 4 weeks of the request to consider and discuss the request with the employee. Every employer must write to the employee within 2 weeks of that meeting with a decision, giving reasons if the application is objected. The employee can appeal within 2 weeks of the employer’s decision and the appeal must be heard within 2 weeks.

Employers may refuse to grant requests for flexible working for objective business reasons. These may be because the working arrangement requested would add unreasonable costs to the business or it might have a detrimental impact on quality, performance or the ability to meet customer demand. Any refusal would need to be objectively justified and properly explained to the employees.

Employees will be able to bring claims in the Employment Tribunal if the employer fails to comply with the specified procedure or if it makes a decision on "incorrect facts". But a Tribunal will not be able to consider, for example, whether the employer’s decision came within the "band of reasonableness" test. It is envisaged that a Tribunal will be able to award "just and equitable" compensation up to a maximum number of weeks’ pay to be set by Regulations. Tribunals will also be able to order the employer to reconsider its decision.

The Government estimates that 3.8 million mothers and fathers will be eligible to make these requests. There is a target consent rate of 82%. The Government have said that if the target is not met, the policy will be considered and a review is promised in any event after 3 years.

This new right to request flexible working is likely to be a matter which becomes more prominent and employers will need to start planning now as to how they will deal with such requests.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.