Government consults further on family-friendly rights

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The Government has issued a consultation on the administration of shared parental leave and ACAS has issued a consultation on the draft Code of Practice on the extended right to request flexible working.

The consultation on the administration of shared parental leave and the consultation on the draft Code of Practice on the extended right to request flexible working were published yesterday. This follows the Government’s response to the Modern Workplaces consultation at the end of last year (see Government announces plans on flexible parental leave and flexible working ) and the publication of the Children and Families Bill 2013 earlier this month. (See Children and Families Bill published )

ACAS Consultation on draft Code of Practice on extended right to request flexible working

Under the Children and Families Bill, the right to request flexible working will, from 2014, be extended to all employees with qualifying service. Further, the current statutory procedure governing the right to request will be replaced by a duty to consider requests in a reasonable manner. ACAS is now consulting on the draft statutory Code of Practice that it has produced for employers to follow.

The draft Code of Practice is very brief and aims to provide employers with principles around how they should consider requests to work flexibly in a reasonable manner, making use of existing company procedures. Points covered by the Code include:

  • arranging a meeting with an employee to discuss the request
  • approaching requests from the presumption they will be granted
  • weighing the benefits of the request against the costs of implementing it (and without discriminating against the employee)
  • informing the employee of the decision in writing and allowing an appeal against a rejection
  • ensuring that a rejection of a request is for a business reason set out in the legislation
  • dealing with requests and appeals within 3 months of receipt (unless an extension is agreed).

The Code will be accompanied by non-statutory ACAS Guidance on “good practice” for handling requests for flexible working. However, this is not yet published.

Shared parental leave and pay – administration consultation

This consultation deals with the administration of the shared parental leave and pay which will be introduced by the Children and Families Bill (and the Regulations made under it) in 2015. Notably, the consultation also changes its name from flexible parental leave and pay to shared parental leave and pay - to avoid confusion with the unpaid parental leave regime and to underline the shared nature of the leave.

The proposals in the consultation set out detail of how shared parental leave will work in practice. Set out below is an outline of the main points:

  • Parents will self-declare eligibility for leave, with employers having the option to request the birth certificate as evidence/to request information to contact the employer of the other parent.
  • Mother must give at least 8 weeks’ notice of intention to end her maternity leave and she and her partner will have to give at least 8 weeks’ notice of intention to start shared parental leave.
  • Mother may commit to ending her maternity leave at some future date so that the untaken weeks become available whilst she is still on maternity leave for her partner to take as shared parental leave.
  • Parents to notify employer of maximum number of weeks of leave and pay available to them and how this will be divided between them (but can later choose to change this allocation).
  • Parents may notify employer of their leave intentions as they require it, i.e they are not required to notify all leave periods up front.
  • Where employer and employee cannot agree on the pattern of leave requested by the employee, the default will be for the employee to take the total amount of leave requested on that occasion in one block on a date of their choosing. (Alternatively, the employee may withdraw their request for leave).
  • Parents are able to request additional periods (and patterns) of leave within the maximum entitlement, or changes to existing patterns, with 8 weeks’ notice, and without restrictions on the number of new notifications or change requests.

As well as the administrative arrangements for sharing the leave, the consultation deals with the following:

  • Eligibility for leave – economic activity test plus qualifying service.
  • Eligibility for pay – same as for SMP.
  • Time limit in which to use the shared parental leave system - i.e whether this should be 52 weeks from the start of the woman’s maternity leave or 52 weeks from the birth.
  • “Keeping in touch” (KIT) days – proposal to allow up to 10 KIT days per parent during shared parental leave (on top of 10 KIT days during maternity leave).
  • Employment protections – whether the “right to return to the same job” should apply following return from the first continuous block of leave of 26 weeks or less or from leave totalling 26 weeks or less in aggregate.

Next steps and your input

The response to the ACAS consultation on the draft Code of Practice is due on 17 May 2013 and the response to the consultation on the administration of shared parental leave is due on 20 May 2013.

We would value members’ input on the consultations, particularly where you have practical experience of administering leave and pay. If you would like to be part of an EEF focus group looking at the Government’s proposals, or if you have any immediate comments, please contact Beth Unwin, Principal Legal Adviser, or Tim Thomas, Head of Employment Policy.

We will also be holding a series of seminars covering shared parental leave and flexible working later this year. Please look out for details.

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Media Team 020 7654 1576

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