UK: Government Consults On Additional Paternity Leave

Last Updated: 14 June 2007
Article by Christopher Booth

The Work and Families Act 2006 contains measures that will significantly enhance the rights of working fathers. Currently fathers are entitled to take just two weeks statutory paternity leave and pay, which must be taken within eight weeks of the child's birth. However, the new provisions will allow fathers to take up to twenty six weeks additional leave to care for their child (paid at statutory paternity pay rates) provided the mother returns from maternity leave after six months but before the end of her full leave entitlement. As a result parents will, for the first time, have the option of sharing a period of paid leave between them.

Details of the Consultation

The Government carried out an initial consultation in 2006. This looked at matters such as eligibility and when the leave could be taken. It is now consulting again - this time on the administration of the scheme. It would particularly like feedback on the following by 3 August 2007:-

  • Its proposed self-certification process under which the mother and father self-certify to the father's employer that the mother is returning to work early. Although this system has the virtue of simplicity it could clearly be open to abuse;
  • Whether 28 days (from receipt of notice of intention to take additional paternity leave) is a reasonable period within which to require an employer to confirm the father's eligibility for additional paternity leave; and
  • Whether new official forms and checklists designed to help employers check a father's eligibility are effective.
Practical Implications

The Government intends to introduce the new right before the end of this Parliament, at the same time as paid maternity leave is extended to twelve months. No firm date for implementation has yet been set, although indications are that the earliest the proposals will be implemented will be in respect of babies due on or after 5 April 2009. In the meantime, employers need to familiarise themselves with the detail of the proposals and consider how they will impact on their organisation.

Severance Deals: Dismissal or Termination by Mutual Consent?

In an unfair dismissal case the first hurdle for an employee - self-evidently - is to show he has been dismissed. This is usually a straightforward issue of fact for the tribunal but as the recent case of Sandhu v Jan de Rijk Transport shows it can cause difficulties, particularly if an employee has negotiated severance terms following a threat of dismissal. In such a situation, has the employee been dismissed?

The Sandhu case

In Sandhu the employee was summoned to a meeting at the start of which he was told - without warning - that his contract was to be terminated. Terms of severance (which were not overly generous to the employee) were agreed immediately afterwards, even though the employee had no time to reflect or take legal advice. The employee subsequently claimed unfair dismissal, raising the question whether he had been dismissed or had simply acquiesced in a ‘mutually agreed parting of the ways’ in which case he would be unable to proceed with his claim.

The case reached the Court of Appeal. The Court was in no doubt that on these facts the termination process was ‘the very antithesis of free, unpressurised negotiation’ and that there had indeed been a dismissal. As the employer accepted there had been procedural failings the unfair dismissal claim succeeded.

Practical Implications

Employers wishing to negotiate an agreed termination should always do so by means of a professionally drafted compromise agreement. For some reason this was not done in the Sandhu case. It is a condition of such agreements that the employee receives independent legal advice before signing. In these circumstances, any undertaking by the employee not to bring employment claims against the employer will normally be binding, thereby avoiding the risk of litigation and drawing a line beneath the whole process.

Do You Need To Know…?
Consultations Galore

In recent weeks the Government has announced a number of public consultations in addition to the one on statutory paternity leave discussed above. They include:-

  • A DTI consultation on the law relating to procedural fairness in unfair dismissal cases - www.dti.gov.uk/files/file39477.doc. This has been prompted by the high level of support for the proposal to repeal the statutory dispute resolution procedures. If the repeal goes ahead (as is likely) new provisions on the effect of procedural error during the dismissal process will be necessary and the Government is keen to canvass opinion on the best way forward. However, the deadline is tight and views are requested by 20 June 2007.
Returning from Maternity Leave

A woman who takes maternity leave is normally entitled to return to ‘the job in which she was employed before her absence’. In most cases this definition is straightforward, but what if the nature of her job varies? This was the issue in Blundell v St Andrews CP School where a primary school teacher who was teaching the reception class when she went on leave was asked to teach an older year group on her return. The EAT held that as teachers at the school were routinely expected to teach different age groups, the job Mrs Blundell was returning to was the same as the one she had left. Accordingly she had no claim against her employer in connection with her right to return.

However, the EAT went on to hold that the head's failure to consult with Mrs Blundell over the allocation of classes (which would have taken place had she not been absent on maternity leave) did amount to sex discrimination - a reminder of just how important it is to treat women on maternity leave like everyone else.

A Reminder…

The blanket ban on smoking in the workplace comes into force in England on 1 July 2007. To view a summary of the new rules click here to see our earlier update. Should you have any queries on this or any other topic, please contact your usual Pinsent Masons adviser or email hrnetwork@pinsentmasons.com.

Cases referred to in this update:

Cases referred to in this bulletin: Sandhu v Jan de Rijk Transport Ltd [2007] EWCA 430; Blundell v Governing Body of St Andrews Catholic Primary School UKEAT/0329/06

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