Work and Families: Choice and Flexibility - case study

Caroline Blackwood of Osborne Clarke continues her series of articles on the Government's recently issued consultation document setting out its plans to improve the situation for working parents and other carers.

Introduction

This month's previous topic of the week articles have looked at the recently issued consultation document Work and Families: Choice and Flexibility (on the DTI website), in which the Government sets out its plans to improve the situation for working parents and other carers.

The proposals cover extending maternity and adoption pay, improving communications between employers and employees on maternity leave, allowing mothers the right to transfer a proportion of their statutory maternity entitlement to the father of their child, and extending flexible working to carers and parents with older children.

This week's article is a hypothetical case study looking at the situation for a family in the future if the Government is re-elected on 5 May and implements its proposals. Where the consultation document sets out a number of possible options, this case study assumes that the options implemented are as follows:

Scenario

Britney has been working for SING Records Limited, a small music company, for just over six months. Following her whirlwind romance with Kevin, she is now expecting their first child. Britney is 14 weeks' pregnant and her expected week of childbirth is 6 April 2007. Britney wants to know how much money she will get and if she can keep her company car while she is on maternity leave.

As long as Britney complies with the notification requirements, which must be done by the 15^th week before her expected week of childbirth, she will be entitled to the full 12 months' maternity leave. Britney will be eligible for statutory maternity pay, entitling her to 90% of her normal weekly earnings for the first six weeks of maternity leave, followed by £106 (this is the current rate - the rate is expected to have risen by 2007) a week for 33 weeks (a total of nine months' paid leave). She can take another 13 weeks off, to complete a full year's leave, but this will be unpaid.

The other good news for Britney is that, because the Government has abolished additional maternity leave, the changes that she would previously have experienced in her relationship with her employer will not happen. As a result she will normally be entitled to contractual benefits such as the use of her company car and company mobile phone for the whole of her maternity leave. At present such entitlement exists during only ordinary maternity leave.

Britney is very keen to return to work after her statutory maternity pay runs out. She has, however, heard that some small companies can legitimately refuse to allow a mother to return to work after maternity leave.

Britney will be entitled to return to the same job as the one she had before her maternity leave. What Britney may have been thinking of is an exemption that allowed a small employer (with five or fewer employees) to refuse to allow a woman to return to work at the end of additional maternity leave if her return was not reasonably practicable. In fact this exemption was never particularly valuable to small employers, as such women would have had other claims that were not covered by the exemption. In any event Britney does not have to worry as from April 2007 the Government abolished this exemption.

Time has moved on and Britney is now on maternity leave having given birth to a girl, Christina. Britney is due to return to work in March 2008 but wants to know if she can return early because she is keen to release a record in time for Christmas.

Britney's employer will assume that she will return on the last possible day of her full maternity leave entitlement, unless she informs it otherwise. As Britney wants to return to work early she will have to write to her employer giving notice of her new plans, and under the new legislation she must give at least three months' notice of her requirements. If she should subsequently change her mind, she will have to give at least three months' notice of the further change.

Britney's employer wanted to keep in touch with her during her maternity leave, but initially it was unsure whether or not it was allowed to do so. However, it took some legal advice, and found out that the recent legislation specifically confirmed that it could make reasonable contact with Britney during her maternity leave, and that the DTI had issued guidance about the exact nature of the contact. As a result, the employer has kept Britney up to date with everything that has happened at the company while she has been away, and she has continued to feel that she is a valued member of the team throughout her absence. Any concerns she had about returning to work have been put to rest by the continuing contact from her employer.

Kevin, who works for Dancers Inc, took his two weeks' paid paternity leave when Christina was born. Kevin now thinks that he would like to take a more active role in caring for Christina. As Britney has already established a successful career and earns more than Kevin, it makes sense for her to return to work and for him to take over some of the childcare responsibilities. Kevin wonders if this is possible.

If Britney decides she wants to return to work before the end of her maternity leave, she can transfer any leave that remains, after she has taken six months' maternity leave, to Kevin. Britney and Kevin must complete the Government's self-certification form detailing their intentions and this form will then need to be signed by Britney's employer. Kevin must then hand this form to his employer, giving the requisite three months' notice of his intention to take leave.

While Kevin is taking his share of the ordinary maternity leave he will be given the same legal protection as Britney would have received had she remained on maternity leave, and he will be entitled to return to his old job at the end of the leave. He will receive statutory maternity pay at the same rate and for the same remaining length of time as Britney would have received it.

Kevin meets his colleague Justin for a drink after work, and Justin tells him that his girlfriend Cameron has been diagnosed with cancer and that he wants to take time off work to help care for her. Justin wonders if he can apply for flexible working.

Although the Government has extended the right to request flexible working to carers, this covers only those people caring for a dependent adult relative. It seems that, as Justin and Cameron do not live together, she will not count as a dependent adult relative, so Justin will have no statutory right to request flexible working in these circumstances.

However, Justin has a daughter from a previous relationship who has just turned 13. Although she lives with her mother, he has been meaning to spend more time with her after school as she has been getting into a lot of trouble recently.

The right to request flexible working has been extended to parents with children under 17, so Justin can apply to change his hours.

So what does the future hold for Britney, Kevin and Justin?

Justin has arranged with Dancers Inc that he can work from 7.30 am to 4 pm instead of 9 am to 6 pm each day. He can now meet his daughter after school each day and take her home.

Kevin is really enjoying his time caring for baby Christina. He now plans on applying to Dancers Inc to request flexible working so that when he returns to work in March 2008 he can do so on a part-time basis.

Britney, whose single was the Christmas number one, is looking forward to having more children and expects to take advantage of the Government's promise to extend statutory maternity pay to 12 months.

Next week's article will begin a series of four from Clyde & Co on long-term sickness absence.

Caroline Blackwood is a training and know-how lawyer in the employment, pensions and incentives department at Osborne Clarke (Caroline.Blackwood@osborneclarke.com)

Further information on Osborne Clarke can be accessed at www.osborneclarke.com