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14 November 2012

Modern Workplaces: Flexible Parental Leave and Flexible Working

The Government has issued its response to the Modern Workplaces consultation, with details of its proposals for shared parental leave and flexible working.

The Modern Workplaces consultation, which closed on 8 August 2011, set out the Government’s proposals to extend the right to request flexible working to all employees; develop a system of flexible parental leave; promote equal pay; and, amend the existing Working Time Regulations 1998 to clarify the interaction of annual leave with sickness absence in the light of recent European decisions.

The Government has now issued two separate responses to the Modern Workplaces consultation: one on its flexible parental leave proposals and one on the right to request flexible working.  A response to the Working Time element of the consultation will be issued “in due course”.

Flexible parental leave

The proposals for a new system of flexible parental leave and pay are intended to encourage fathers to take a greater role in caring for their babies and to enable working families to decide how best to share the leave and pay currently only available to the mother.

The existing right to 52 weeks of maternity leave (39 of which can be paid at the rate of statutory maternity pay, subject to satisfying the qualifying conditions), will remain in place for mothers who elect to take it.

If both partners satisfy the qualifying conditions (minimum levels of pay and 26 weeks of service with the employer by the 15th week before the baby’s due date), they will be able to share any untaken balance of maternity leave and pay and take it as ‘flexible parental leave and pay’.

This means that new parents may elect (provided both qualify for the entitlement) to take a period of the time concurrently, so that they are both off work at the same time, or take separate periods of leave.  Leave can be taken in minimum blocks of one week, and parents can choose to take more than one block of time (returning to work in between periods of leave).  The mother will have to specify a date for returning to work before the end of the 52 week period but it will no longer be necessary, as with the current system of additional paternity leave, for the mother to return to work in order for the father to take the leave.

The Government intends to introduce the new system of flexible leave from 2015.  A further consultation will be issued in early 2013 to consider the details of how the new system will work in practice.

Adoption leave

The entitlement to statutory adoption leave will become a ‘day one’ right, without the existing service requirement.  Statutory adoption pay will also be enhanced in line with statutory maternity pay, so that the first six weeks will be paid at 90% of the primary adopter’s salary.  Adoptive parents will also be entitled to participate in the new flexible parental leave and pay system, provided both satisfy the qualifying requirements. 

Adoption leave and pay will also be available to intended parents in a surrogacy arrangement, if they meet the criteria for a Parental Order.

Time off for antenatal appointments

A new right will be introduced at the same time as the new system of shared parental leave, entitling fathers to take unpaid time off work to attend two antenatal appointments.

Paternity leave

The original consultation had suggested that the existing right for fathers to take two weeks of paid (ordinary) paternity leave around the time of the birth would be increased to four weeks.  However, the Government has confirmed that it will be retaining the existing right to two weeks of leave whilst introducing a power to increase this period at a later date, “when Government and business finances permit”.

Unpaid parental leave

The existing right to unpaid parental leave (which will continue alongside the new right to flexible parental leave) will be increased from 13 to 18 weeks from March 2013, in order to comply with the revised EU Parental Leave Directive.  This will still be subject to the annual maximum of four weeks.  From 2015, the age limit for taking unpaid parental leave will be increased from 5 years to 18 years.

Flexible working

In a separate response to the original consultation, the Government has confirmed its intention to extend the right to request flexible working arrangements to all employees (including those without parental or caring responsibilities), with effect from April 2014 at the earliest.

The current statutory procedure for making a flexible working request will be replaced with a broader duty on employers to deal with requests in a ‘reasonable’ manner, within a ‘reasonable’ period of time.  A new statutory code of practice will provide guidance to employers on how to deal with a request for flexible working, including guidance on prioritising conflicting requests.

Employees will still need a minimum qualifying period of service of 26 weeks in order to make a request, and will only be permitted to make one request in any 12 month period.

A copy of the Government’s response on Flexible Parental Leave is available here.

A copy of the Government’s response on Flexible Working is available here.