Prisca is a legal adviser with the employment team at Darbys Solicitors LLP in Oxford, and specialises in discrimination and the healthcare sector
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The provisions of the Work and Families Act 2006 intend to address several policy goals:
- To help parents take leave to care for their children in the child’s first year.
- To improve staff morale, retention
- and recruitment.
- To support business planning.
What are the changes?
Increase in maternity rights
Since 1 April 2007, there has been an increase in statutory maternity and adoption pay. All employees are now entitled to additional maternity leave (previously only available to those with longer service), and employers must be given more notice of employees returning to work following maternity leave.
The changes listed in Box 1 represent the first wave of reforms to maternity pay and leave. Apart from increasing the rate of maternity pay, it is the government’s intention to extend the maternity pay period to the whole of the 52 weeks. It is also anticipated that it will introduce a right for fathers to take up to six months’ paternity leave if the mother returns to work after “Ordinary Maternity Leave” (26 weeks). Exact details are yet to be confirmed.
Apart from getting to grips with the extension of the maternity pay period and the fact that all employees are now entitled to a year’s maternity leave, employers have welcomed the “keeping in touch” (KIT) days, and the ability to make reasonable contact.
I have often been asked to advise on if and how employers should contact those on maternity leave. Some employees have complained that they have felt “ignored” by employers, whereas others want no contact at all and may consider the employer’s attempt as harassment. The new legislation now makes it very clear that reasonable contact can be made.
Flexible working for carers
Significantly, since 6 April 2007, employees who care, or expect to care, for adults have been able to request flexible working in the same way as those who care for very young children.
At present, government figures show that of the 22% of working parents making a request for flexible working, approximately 90% of applications were granted by employers. Now that the right has been extended to those who care for adults, employers in general will see an increase in the level of requests made. Exactly how many more requests will largely depend on the makeup of your workforce.
The 2001 census revealed that 2.5 million people in England and Wales combine caring with paid work. For the first time, the census included a question about caring:
“Do you look after or give any help or support to family members, friends or neighbours or others because of: long-term physical or mental health or disability or problems relating to old age?”
The results revealed that more than five million people provide unpaid care, and almost four million of those carers are of working age.
The census information also showed that 89% of the part-time workers who had caring responsibilities were women. More than half of working carers are over the age of 45.
Small businesses, such as GP practices, which often employ a relatively high proportion of female, part-time workers, may be more likely to receive applications than businesses that employ a mix of women and men on a fulltime basis.
It is wise to have family-friendly policies in place, which not only deal with maternity, paternity and adoption leave but also time off for emergencies and parental leave. For flexible working requests, employers should process any requests from carers in the same way that they have for those with childcare responsibilities.
The right to make a request will apply to anyone with more than 26 weeks’ service who is caring for, or expects to care for, an adult who is married to, or the partner or civil partner of, the employee, or is a near relative, or falls into neither of those categories but lives at the same address as the employee. This definition will not cover those who are caring for a neighbour who is not a relative or near-relative.
The employer should remember that there is a 28-day deadline for responding to the application, along with a duty to hold a meeting to consider the request. The employer can refuse for a number of specified reasons, and if the request is refused there is a right of appeal. The employee also has the right to be accompanied during these meetings.
Possible consequences for failure to follow the procedure
The importance of adhering to the statutory procedure cannot be overstated, as the consequences of not doing so can be costly. An employee can challenge an employer’s refusal to grant flexible working at the Employment Tribunal.
Many claims brought for breach of the statutory procedure also include claims for constructive dismissal and indirect sex discrimination. If a tribunal finds that the employer has breached the statutory procedure, they can award up to eight weeks’ pay (subject to a maximum weekly amount of £310). In addition, if the tribunal also finds evidence of discrimination, then injury to feelings awards apply, which can range between £500 and £25,000, but are in reality unlimited.
That’s not to say that employers have to say “yes” to all or any applications; they just need to show that they have properly considered them and that they have a good business reason to refuse, which is not discriminatory.
Not all requests mean great upheaval to the business. In fact, sometimes all that may be needed is access to a telephone or make a minor alteration to arrangements. To give a recent example, an employer provided a reserved car-parking space for an employee, who was then able to visit her mother during her lunch break.
Beverley Hughes, the children’s minister, stated that it is the government’s intention to allow all 29 million workers in Britain the right to work flexibly. Her position is that all employees should be able to work part-time, on flexitime, from home or as part of a jobshare unless there is a sound business reason for them not to do so. This is to recognise that “everyone has a life outside work, not just parents”.
The Equal Opportunities Commission supports this view and believes it could also reduce potential resentment from colleagues who do not have families. In a recent report, the Commission states that employers who have opened up the right to request flexible working to all staff have found improved retention and recruitment, better staff motivation and morale, and less absenteeism.(1)
Whatever the likelihood of flexible working being offered to all, changes in the law seem to be directing employers of all sizes to adopt a more open attitude to a work–life balance, with the result that they should ultimately benefit from lower absenteeism and staff turnover.
1. Equal Opportunities Commission. Working Outside the Box: Changing Work to Meet the Future. Executive Summary of the Interim Report of the EOC’s Investigation into the Transformation of Work. January 2007. ISBN 1 84206 003 1.