Work and Families: Choice and Flexibility - part two

This week 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

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.

Last week's article looked at the proposal to extend paid maternity leave from six months to nine and associated changes to the nature of maternity leave. This week's article outlines the second set of proposals, which concerns communication between employers and employees who become pregnant and take maternity leave. The Government states that it 'wants to ensure that employers can make plans for their business with confidence and that employees can be kept in touch with the workplace whilst on maternity leave'.

Not an entirely new concept

The concept of employers keeping in touch with those of their employees who are on maternity leave is not as new or radical as the Government might like to think. It has already been established in case law that employers have a duty to keep employees who are off on maternity leave informed of significant changes in the business. In Visa International Service Association v Paul [2004] IRLR 42 EAT it was held that the employer had breached the implied term of mutual trust and confidence by failing to inform the employee of a relevant job vacancy that arose during her maternity leave.

Employers should also be sure to give employees on maternity leave the opportunity to be involved in any consultation process taking place, for example if redundancies are proposed or there is to be a transfer of the business. Women on maternity leave should be informed of any major changes at their employing company, such as a change of location or a reorganisation. When an employee returns from maternity leave, it is best practice to have a 'return to work' meeting at which the employee is brought up to date with the situation in the office, informed of any changes in working practice and personnel, and given the opportunity to ask any questions she has.

Current position

In relation to communication from the employee to her employer, at present a woman must notify her employer no later than the end of the 15^th week before the week the baby is due, or as soon as reasonably practicable, that she is pregnant and when she intends to start her maternity leave. The Government has no plans to change this requirement.

In relation to her return to work, at present the employer must assume that this will be at the end of the woman's full ordinary or additional maternity leave entitlement. In order to return earlier, a woman must provide at least 28 days' notice of her intended earlier return date. Most women now qualify for the full 12 months' maternity leave, and there is no requirement for a woman to contact her employer during her maternity leave to confirm her return date. This leaves many employers in a state of uncertainty, not sure whether the employee will return on the last possible date or before (subject to the required 28 days' notice of an early return), or indeed whether she plans to return at all.

Proposals

Changing notice periods for return to work date

The Government has set out three options for changing the notice period for a woman to notify her employer of her return to work date. These are that:

Option one amends the current position under which a woman can simply return after her full maternity leave entitlement without any communication with her employer whatsoever. The option does not, however, make it clear how much notice the mother would be expected to give her employer of her return date, but the example given in the consultation indicates that the employer could write to the woman three months before her expected return date, and she would then have to confirm in writing her actual intended return date two months prior to that date.

Under options two and three, there would be no compulsion on a woman to notify her employer of her return date unless that date is going to differ from her expected return date, ie at the end of her full maternity leave entitlement. However, if the woman did intend to return early, she would have to give either two or three months' notice to her employer of that changed intention, giving the employer an increased amount of time to plan for the revised return. This would make it easier, for example, to give appropriate notice to any replacement who was covering the maternity leave period.

Mothers would have to abide by the new notice periods if they decided to return early and subsequently decided to postpone their return. The postponement would have to be notified to the company with the appropriate length of notice.

The new notice period chosen will apply to adoptive parents and also to fathers to whom part of the maternity leave entitlement is transferred.

Improved communication between employers and employees during maternity leave

The level of contact that a woman would like from her employer while she is on maternity leave will vary from one woman to the next. Some women will want a complete break to enjoy motherhood with no interruptions from work, and may find contact from the office stressful. Others will be keen to keep in touch, on a social and work-related basis, and will feel neglected and cut out of the loop if they perceive that their employer is simply ignoring them. Employers therefore have to walk something of a tightrope to ensure that they get the balance right. A helpful starting point would be a meeting with an employee before she goes on maternity leave at which the employer can find out how much contact she would like. A written note of the meeting should be kept so that there is documentary evidence of the employee's preferences should a problem arise later.

The Government has identified that, while there is nothing in law to prevent contact between employers and women during maternity leave, employers do not feel confident about contacting mothers on maternity leave. It is therefore proposing three ways to support effective communication during maternity leave, as follows.

Improving information and advice for parents

The Government is proposing to create a 'one-stop-information-shop' for working families, through which they could obtain advice on working time options, support for applications to change working hours, and help to find childcare and elder care services. Certainly having one well-known source with excellent knowledge of these areas would be a valuable resource for working families. However, whether a website, which is one of the Government's suggestions for this resource, could cater adequately for the very varied circumstances of working families, and resulting queries, is questionable. Equally, a helpline, another of the Government's suggestions, would need to be staffed by well-qualified people able to give substantive advice in order to be of real use.

Supporting women returning to work

In the last part of this chapter of the consultation document the Government is looking at ways to assist women returning to work after a break for other caring commitments. Around 43% of mothers with a pre-school child are not economically active, and such mothers are more likely to be low or medium skilled women than high skilled women. The Government has rightly identified that a significant period out of the workplace can have all sorts of effect on women, including loss of skills and the self-esteem and confidence necessary to regain a position at their former level in the workplace. The break affects lifetime earnings and can have a huge effect on pension accrual, things which continue to be affected if a woman returns to work part time. The Government is offering little in the way of concrete proposals in this area, other than stating that there are some pilot schemes already in place looking at ways to help women to return to work.

Responses

In summary the Government is requesting responses to the following questions.

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 consider the Government's proposals with regard to transferring maternity leave and pay.

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