UK: Children And Families Bill Sets Out Basics Of Shared Parental Leave

Last Updated: 6 March 2013
Article by Nick Elwell-Sutton and Ruth Bonino

The Government has published new draft legislation setting out the framework of a new system for shared parental leave and pay, including an extension to the right to request flexible working to all employees. The Children and Families Bill had its first reading on 4 February 2013, but regulations, which have not yet been published, will contain the precise details of how the system will work, including eligibility criteria and length of notice of intention to take leave.

Statutory rights to leave and pay

The Bill proposes a new right to shared parental leave and statutory shared parental pay in single or non-consecutive periods, which will replace the current maternity and additional paternity leave and pay regime. Women will still be eligible for maternity leave but, from 2015, will be able to choose to bring their leave to an early end and share the remaining leave with their partner. Adopters will also be eligible to use the new system for shared parental leave and pay. Adoption leave and pay will be extended to prospective parents in the fostering-to-adopt system and parents in a surrogacy arrangement who are eligible, and intend to apply for, a parental order. When calculating the amount of leave taken, a part of a week is to be treated as a full week and regulations may provide for an employer to require employees to take leave in a single period rather than non-consecutive periods. The idea is to take a "light touch" approach to administration, where it will be up to parents to discuss with their employers what arrangements they propose.

Time off work: Ante-natal care

There will be a new right for employees and qualifying agency workers to take unpaid time off work to attend up to two ante-natal appointments with their partner. Adopters will also be able to take unpaid time off work to attend meetings in advance of a child being placed with them for adoption.

Right to request flexible working

The right to make a flexible working request which is likely to come into force by 2014 will be extended to all employees (as opposed to just parents or carers as at present). The statutory process that is currently in place for considering flexible working requests will be removed. Currently, employers may only turn down a request on one of the specified business reasons set out in the legislation. Instead, employers will be able to consider requests using their existing HR processes provided they deal with applications "in a reasonable manner". ACAS will publish a statutory Code of Practice to explain what the minimum requirements are in order to consider a request in a reasonable matter.

The likely impact of the changes

Whilst the Government's intentions for shared parental leave are commendable, there is bound to be more administration for employers to handle. Most of the detail is left to regulations to be made by the Secretary of State so it is difficult at this stage to be definitive about any particular problems which could arise. One issue to look out for is the control that an employer has over the extent to which employees are able customise their leave. A requirement in regulations that enables employers to insist that leave is taken in a single period would be useful if agreement cannot be reached, especially for smaller businesses where finding cover for irregular periods will be particularly challenging. Another issue is the length of notice which must be given to take shared parental leave which will be critical for staff planning - this is also left to regulations.

Calculating statutory parental pay or salary due is likely to be another hurdle that employers will encounter. It is, as yet, unclear how the respective employers of each parent will verify what leave the other partner is taking or has requested. There may also be situations where one partner's employer is in favour of a shared arrangement, but the other is against and ultimately although employers have the power to object to a particular working pattern they will not be able to prevent an employee from taking shared parental leave at all. Employers will also have to consider whether to make available enhanced maternity pay to fathers (or the partner of the mother) who take shared parental leave in place of their partners.

Turning to the extension of the right to request flexible working, it is unclear under what circumstances employers will be able to refuse a request and whether the existing prescribed reasons will be replicated in the Acas Code, or whether the Code will simply give examples of what will be considered reasonable. This may mean that there is little change from the current system, but it does seem unlikely that this will reduce administration for employers as hoped. The requirement of reasonableness is bound to form the basis of many disputes. The right may be useful to care for grandparents or other family members, although the Government's hope that the new rules will spark an increase in charitable endeavours outside work seems unlikely. There will be no obligation on employers to grant requests, merely an obligation to consider each request, and as yet there have been no proposals designed to encourage employers to grant requests.

Currently it is proposed that the changes to flexible working will be implemented in 2014, and shared parental leave will take effect in 2015.

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.

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Nick Elwell-Sutton
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