UK: Government Consults on Family Friendly Proposals

Last Updated: 20 March 2006
Article by Christopher Booth

The Government's Work and Families Bill is currently making its way through Parliament and once enacted will give the Government wide powers to make significant changes to the rights of working parents. However much of the detail will be set out in secondary legislation which the Government is currently consulting upon. This piecemeal approach to the introduction of the new rights does not make it easy to keep abreast of developments. In this bulletin we therefore summarise the Government's proposals to date and highlight some of the issues which have been put out to consultation.

Summary of proposals

The Government's proposals include:

  • Extending statutory maternity pay from 6 to 9 months from April 2007. The ultimate goal is to extend it to one year by the end of this Parliament;
  • Giving all pregnant employees the right to 12 months maternity leave, regardless of length of service, where the expected week of childbirth (EWC) begins on or after 1 April 2007;
  • Allowing women to work for a few days (known as ‘keeping in touch days’) whilst on leave without losing any SMP. Again this change will apply where the EWC starts on or after 1 April 2007;
  • Giving fathers up to 6 months additional paternity leave if the mother returns to work - this right to be in force by the end of this Parliament; and
  • Extending flexible working rights to carers of adults from April 2007.

Issues for consultation

The Government's consultation refers to a number of matters which have not yet been finalised, including who should qualify as a carer for the purpose of the extended right to request flexible working, whether there should be a limit on the number of ‘keeping in touch’ days, the qualifying service needed to qualify for additional paternity leave and what amounts to a ‘return to work’ by the mother. Details of the consultations can be found at www.dti.gov.uk/er/workandfamilies.htm

Practical Implications

Employers need to plan ahead now for these changes, particularly as some of the rights (including the extension of SMP) will apply to women who announce their pregnancies this autumn. The Government has promised detailed guidance to aid employers.We will let you know as soon as it becomes available.

Flexible working: recent decision by EAT

The first reported decision on the right to request flexible working, Commotion Limited v Rutty, has been handed down by the EAT. The case suggests that where an employer refuses a request, the tribunal's powers of review are wider than had previously been thought.

Background

The right to request flexible working currently gives certain employees with young children the right to ask for changes to their working arrangements to help them care for their children. Crucially the law does not require the employer to agree the change. Instead it provides that the request can be refused provided this is done on one or more specified grounds. (These include such practical matters as additional costs and detrimental impact on either quality or performance.) Furthermore where the refusal is on one of these specified grounds the employee's redress is limited to challenging the decision on the basis of procedural error or because the decision was based on ‘incorrect facts’.

This approach reflects the light touch which the Government wanted to bring to this area. However the Rutty case makes it clear that whilst a tribunal cannot conduct a full enquiry into whether the employer has acted ‘fairly, sensibly and reasonably’ in refusing the request, it may, in appropriate cases, ask such questions as whether the request would have caused disruption and what other staff felt about the request - questions which seem to involve the tribunal, to some extent at least, in looking at the merits of the employer's decision.

Practical Implications

This case emphasises the need for employers to keep detailed written evidence of the reasons for any refusal of a flexible working request in case a claim is brought (which will include a request from the carer of an adult once the right to request flexible working is extended to such cases in April 2007).

Do You Need To Know ...?

Changes to employment law

In accordance with the DTI's policy of introducing legislative changes in April and October each year, a number of amendments to employment law will take effect on 6 April, 2006.

The best known change is the revision of the TUPE Regulations, designed to bring UK rules on business transfers in line with European law. However other changes include minor amendments to both the Working Time rules (discussed below) and the Information and Consultation regulations (relating to consultation on pension issues). In addition the CRE's new Code of Practice on racial equality in employment, which tribunals can take into account in race claims, will also come into force.

Spent disciplinary warnings

Employers must ignore disciplinary warnings once they have expired - that is the uncompromising message from the recent case of Diosynth v Thomson. In that case the employee's dismissal for a health and safety breach was found to be unfair because the employer had taken into account a written warning which had expired five months previously when deciding upon the appropriate sanction. One of the problems in this case was that the spent warning had remained on the file. Employers should therefore consider how they deal with this issue. Best data protection practice suggests that spent warnings should be removed from the file entirely and this would certainly avoid inadvertent reliance on an expired warning.

Working time: an update

The future of the UK's opt out from the 48 hour week remains unclear. Although the European Parliament has indicated that it wants to set a deadline for ending the opt out, Ministers from the individual Member States failed to agree on the issue when they met before Christmas.

Since then, in the case of Commission v UK, the European Court of Justice has been considering the legality of certain aspects of the UK Working Time Regulations. Although the ECJ is yet to give its decision, the UK Government has effectively conceded one of the points in issue. This relates to the current UK rule that additional hours which a worker chooses to work over and above his set hours, without any compulsion by his employer, do not count as working time. The Government has announced that this rule will be repealed on 6 April 2006. Ironically, this could increase employers' use of the opt out - a result which will dismay those who are calling for its swift demise.

Cases referred to in this update:

Commission v UK C-484/04; Diosynth v Thomson [2006] CSIH 5; Commotion Ltd v Rutty [2006] IRLR 171

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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