Flexible working and Family Friendly Rights

Introduction

Family-friendly rights are improved since they will not only introduce a right to unpaid parental leave and paternity leave from day one in employment, but the burden will shift to employers to justify why they have refused a request for flexible working. A new right to bereavement leave is also introduced, widening the current provision which entitles bereaved parents to statutory parental bereavement leave.

 

What's included?

The right to unpaid parental leave gives employees the right from day one in employment to take up to 18 weeks unpaid leave to care for a child under the age of 18. The right applies to each child, so two children mean two lots of 18 weeks of leave.

The right to paternity leave will also apply to employees from day one in employment and aligns with the rights of women and adoptive parents who are entitled to maternity and adoption leave from day one in employment. The restriction from taking paternity leave following a period of shared parental leave is also removed. Employers may still refuse a request for flexible working on the following current grounds:

(a) the burden of additional costs;

(b) detrimental effect on the ability to meet customer demand;

(c) inability to re-organise work among existing staff;

(d) inability to recruit additional staff;

(e) detrimental impact on quality;

(f) detrimental impact on performance;

(g) insufficiency of work during the periods the employee proposes to work;

(h) planned structural changes;

However, employers will need to specify which of the above grounds they rely on and explain why the decision to refuse on the specified ground is reasonable. Regulations will also set out the steps an employer must take when consulting employees before rejecting a request.

The right to bereavement leave extends the current right to two weeks’ leave, which is currently available for bereaved parents who lost a child under the age of 18 or who suffer stillbirth, to a bereaved person. Regulations will set out the conditions employees will be required to meet in order to qualify for the right, which will ultimately depend on the nature of the relationship to the loss of a loved one and, depending on that relationship, whether the employee will be entitled to more than one period of bereavement leave. Employees will also be protected from being subject to a detriment and dismissal for taking the leave.

 

What's not included?

The right to parental leave (which is separate and distinct from the right to shared parental leave) remains unpaid. Neither is there any proposal to increase paternity leave from the statutory minimum of two weeks paid leave pay. It is also unclear whether there will be an entitlement to pay for the expanded bereavement leave. The commitment to make flexible working the “default in workplaces” falls short of providing workers with a right to flexible working. Nevertheless, the requirement on employers to justify the reason for refusing a request should hopefully lead to more requests being granted, as should the risk of an employer’s rationale being subject to greater scrutiny by employment tribunals.

 

Comment

The Government’s Plan to Make Work Pay commits to making immediate changes to the rights on flexible working, paternity and parental leave. But it doesn’t stop there; in recognising the importance of balancing rights for working families as part of its Plan to Make Work Pay, the Government is also committed to reviewing the parental leave system as well as carers and their dependents. While such a review is long overdue, it’s refreshing that this Government recognises the importance of having an ongoing strategy for developing family-friendly rights in consultation with Unions and employers.

 

 


Full Briefing: The Employment Rights Bill