Work and Families: Choice and Flexibility - part three
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.
The Government has recently issued a consultation document Work and Families: Choice and Flexibility (on the Department for Business Enterprise & Regulatory Reform website), setting out its plans to improve further the situation for working parents and other carers if Labour is elected for another term. The closing date for responses is 25 May 2005.
This week's article outlines the Government's proposals with regard to allowing mothers to transfer a proportion of their maternity entitlement to fathers and the extension of the right to request flexible working to carers and parents of older children.
Transferring maternity leave between mothers and fathers
The increasing role of fathers in childcare
The Government is keen to recognise the 'strong, positive educational effects' that result from fathers playing a greater role in bringing up their children.
To some extent the present Government has already recognised the increasing role of fathers in childcare, through the introduction in 1999 of 13 weeks' parental leave for each parent per child, and then the introduction in 2003 of two weeks' paid paternity leave. The right to request flexible working, also introduced in 2003, also applies equally to fathers and mothers. However, the law as it stands still ensures that mothers are forced to remain the primary carers for their children in the first year of life, unless external care is engaged, which not all can afford or necessarily want. The challenges presented by a significant career break to care for a child are still perceived as a burden that business must shoulder purely in relation to the female part of its workforce. If this challenge were to become an accepted part of the career pattern for the entire workforce through men having the opportunity to take a prolonged break for childcare purposes, this could be a significant breakthrough in the quest for male and female equality in the workplace.
The proposal
The Government is proposing a new law giving mothers the right to transfer a proportion of their maternity leave and pay to the father of their child. It suggests that this proposal 'reflects changing family patterns, [and] the different choices families are increasingly facing' and further that it will 'help support greater equality at home and at work for men and women'.
Under the Government's proposals, fathers will not have a free-standing right to a prolonged period of leave on the birth of their child. Instead, part of the total maternity leave entitlement that the mother has will be transferable to the father if the mother so decides. The period of leave must run continuously from the mother to the father and if the father, whilst on leave, decides to return to work earlier than planned, any untaken leave will be lost. The same principles will apply for adoptive parents.
While a father is on his share of the statutory leave he will be afforded the same legal protection as a woman receives while on maternity leave.
How the leave will operate
The Government is proposing three options with regard to the amount of leave and pay that could be transferred. The proposals are that the transferable leave and pay could be:
any leave and pay after six weeks following the start of maternity leave (or two weeks after the birth of the child if this is later);
any leave and pay after six months, which would be consistent with the Government's advice that children should be solely breastfed for the first six months of their life; or
any leave and pay after three months.
The Government suggests that the first option may raise concern from women's groups that mothers will be put under increasing pressure to return to work too early following the birth of their child, although why this should be the case when the decision whether to transfer leave would reside with the mother is unclear.
Administering transferable leave
The administration of the scheme will clearly need to be as straightforward as possible. A mechanism to prevent abuse will be necessary. The Government has put forward three suggestions on how to achieve this. The first option would require both parents to complete a self-certified form outlining their eligibility to take transferred leave and pay. The second option would require that the mother's employer also sign the form as an additional check in the system. The third option would involve the mother's employer contacting the Inland Revenue, which would then provide confirmation to the father's employer of his entitlement to leave.
Simplifying the administering of payment
Another headache for employers is the administration of maternity pay. One suggestion is that the Inland Revenue should take over the payment of statutory maternity pay direct to the parents. This would be of benefit to employers as they would save on the cost of administering such payments.
A step towards true equality in the workplace?
The Government's proposals leave question marks as to how far this is a step towards true equality. If maternity leave is to become something truly transferable between mothers and fathers should it be given a new, gender-neutral label? Perhaps the initial part of leave, which due to biological necessity will always be taken by women, should remain as maternity leave, but the subsequent longer period of leave that could be taken by either parent should be appropriately renamed.
It is also interesting that a father's entitlement will depend on the mother's length of qualifying service, as he is allowed to take part of her entitlement only. Is it right that a father with many years' continuous service should be allowed a lesser period of leave because the mother has only short service?
Responses
The Government is looking for comments on the issues raised, and on the following questions in particular.
How much maternity leave should mothers be entitled to transfer to fathers?
What steps would help to keep the procedure for transferred leave and pay administratively straightforward?
How much notice should parents give to their employers when transferring leave and pay?
Are there any other issues to be raised such as how long employers, employees and their representatives will need to prepare for the new right?
What examples are there of the costs of calculating, paying and repaying maternity, adoption and paternity pay, and administering maternity leave and arranging cover?
What would the impact of introducing a direct payment system be?
What are the advantages and disadvantages of statutory maternity pay, etc being paid directly by the State?
Are there any other approaches that would make administering the system of leave and pay easier?
What else should the Government consider in deciding whether to transfer payment to the State?
Responses to the consultation can be e-mailed to Shirley Drake, Employment Relations Directorate, at workandfamilies@dti.gsi.gov.uk.
The right to request flexible working
In April 2003, the Government introduced a legal right for parents of young and disabled children to request flexible working hours and a corresponding duty was put on their employer to consider their request seriously.
According to a 2004 Government survey flexible working has been a success. Almost a quarter of parents of children under six asked to change to more flexible working patterns in the first year of the entitlement and of these three-quarters had their request granted. This means that 800,000 families have secured flexible working hours.
The Government believes that the success rate is because 'employers believe the right has either a positive or no impact on their business, and that implementation costs associated with the right are insignificant'. Whatever the reason, employees who are eligible are certainly benefiting from the right to request flexible working as employers are turning down only 8% of requests.
The Government now proposes to extend flexible working to two further groups: carers and parents with older children.
Extending the right to carers
With one in five households containing a carer, an extension of the right to request flexible working to carers could be far reaching. It is estimated that there are 3.5 million carers who work either full or part time and provide some form of unpaid care. The Government 'believes much greater recognition should be given to the contribution carers make to society'. Giving them the right to request flexible working, and to have their request seriously considered, would be an important step in this direction.
The Government has suggested five different options regarding the definition of carer. These are that it could cover caring for a partner only; caring for either a partner or a parent; caring for any dependent adult relative; caring for any disabled dependant; or caring for another definition of carer.
Although the Government acknowledges that 'there is a greater uncertainty for carers since the needs of sick and disabled relatives can often change over time', it does not intend to change the current practice that once a new flexible working arrangement has been agreed this creates a permanent change to a person's employment contract. This should benefit employers by enabling them to plan their workforce.
Extending the right to the parents of older children
A parent's responsibility to care for his or her child does not stop when the child reaches six and the Government is now looking to extend eligibility to parents of older children. The Government has suggested three new limits for eligibility, these being parents of children under the age of nine, 12 or 17. If the Government decides on the third option this could see the right to request flexible working extended to a further 4.5 million parents.
Responses
The Government is looking for comments on the issues raised, and on the following questions in particular.
How should the impact of the right to request flexible working law influence the way the Government considers extending its scope to carers and parents of older children?
What is the case for extending the law to the carers of adults?
What types of caring should the law cover?
What is the case for extending the law to the parents of older children and when might this be done?
What should the cut-off age be?
What level of demand is likely to result from extending the right to these two groups?
What further support and guidance should the Government provide to facilitate the spread of flexible working?
Responses to the consultation can be e-mailed to Shirley Drake, Employment Relations Directorate, at workandfamilies@dti.gsi.gov.uk.
Next week's article will demonstrate the potential effect of the Government's proposals by way of a case study.
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
