Government forges ahead with family law reform and shared parental leave

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The Government has published its response to the consultation about the administration of shared parental leave and pay.

Shared Parental Leave

In April 2015, a new concept of shared parental leave will be introduced. Mothers will have the option to convert up to 50 weeks of maternity leave into shared parental leave, which may then be taken by either parent, or shared between them. Today’s publication gives further details of how this new scheme will work in practice.

In an important win for our member companies, EEF has succeeded in persuading the Government to:

  • require mothers and fathers to give an up-front indication of their intended pattern of shared parental leave
  • limit the number of separate leave requests and changes to leave requests to 3 per employee
  • introduce a better model for the right to return to work following shared parental leave, so that parents do not automatically always have the right to return to exactly the same job

Right to request flexible working

As part of the same policy commitment, from April 2014, the right to request flexible working will be extended to all employees with 26 weeks service. The current statutory procedure for dealing with flexible working requests will be replaced by a duty to consider requests in a reasonable manner.

ACAS will be publishing a Code of Practice on handling flexible working requests. The consultation on the draft Code closed earlier this year – see our earlier HR Briefing for more details. The Code will be accompanied by non-statutory ACAS Guidance on “good practice” for handling requests for flexible working. This will be published alongside the final Code by early next year.

Key facts

We summarise the key changes below.

Current Policy

How will this change?

Maternity leave and pay

All employed mothers are eligible to take 52 weeks maternity leave. Qualifying mothers receive 6 weeks SMP at 90% pay, and 33 weeks at basic rate SMP.

Entitlement of 52 weeks maternity leave will stay the same. But mothers can choose to convert up to 50 weeks maternity leave into shared parental leave. Pay scheme remains same.

Maternity leave can be taken from 11 weeks before the due date, and runs for 52 weeks.

Mothers can start taking shared parental leave from 2 weeks after birth. Fathers can start taking shared parental leave from the birth. Shared parental leave must be used up within 52 weeks of the birth.

Maternity leave must be taken in one continuous block, and cannot be stopped and started.

Mothers and fathers can distribute shared parental leave between them in whatever proportion they choose. They can take leave at different times or at the same time. They can take leave in discontinuous blocks.

Employees must request their desired patterns of leave. Where employer and employee cannot agree on the pattern of leave requested by the employee on any occasion, the default will be for the employee to take the total amount of leave requested on that occasion in one block commencing on a date of their choosing.

There will be a cap on the number of requests for leave or changes to previously agreed patterns of leave of 3 per employee (the original request and 2 further changes or notifications).

Mothers must confirm their maternity leave start date at least 15 weeks before the baby is due.

Mothers and fathers are required to complete a form indicating how much maternity leave is going to be converted into shared parental leave, and how this will be allocated between them (although the allocation can potentially change later on parents giving notice to their employer).

Mothers and fathers must also make a non-binding indication of when they want to take the leave at the time they notify their employer of how much leave they each intend to take.

Mothers and fathers must give 8 weeks’ notice of each request for shared parental leave.

Mothers have the right to return to the same job if they return to work before 26 weeks. If they return in the subsequent 26 weeks, they have the right to return to the same or, if not reasonably practicable, a similar job that must be appropriate in the circumstances.

Employees returning from leave that totals 26 weeks or less in aggregate can return to the same job, even if the leave is taken in discontinuous blocks.

Any subsequent leave will attract the right to return to the same job or, if not reasonably practicable, a similar job.

Mothers can take up to 10 KIT days. Employers must agree to any KIT days.

The 10 KIT days during maternity leave remain. In addition, mothers and fathers taking shared parental leave can take up to 20 KIT-type days each. Employers must agree to any KIT-type days which do not have to be paid by the employer

Paternity leave and pay

Qualifying fathers can take up to 2 weeks of ordinary paternity leave.

Fathers whose partners return to work can take up to 26 weeks of additional paternity leave from 20 weeks after birth.

Ordinary paternity leave still remains, but fathers could instead take shared parental leave from birth.

Additional paternity leave will be abolished and replaced by the shared parental leave scheme.

Fathers are not able to take any parental leave until the baby is born.

Fathers will have a new right to unpaid leave to attend up to 2 antenatal appointments.

Right to request flexible working

The right to request flexible working is currently available for employees who have 26 weeks continuous service with their employer, and are either:

  • parents of children under 17 (under 18 if the child is disabled) or
  • carers of adults either within the home or a relative.

The right to request flexible working will be extended to all employees with 26 weeks continuous service with their employer.

Employers are required to consider the request following a prescribed procedure set out in legislation.

The current statutory procedure for considering requests will be removed and replaced with a duty on employers to consider requests in a ‘reasonable’ manner. Acas guidance will provide some detail on what this will mean.

What happens next

The Government will now start introducing the secondary legislation to bring these changes into effect. Before the end of the year, the regulations dealing with flexible working and the first set of regulations dealing with shared parental leave are due to be published. In total, the Government are proposing 23 sets of secondary legislation, to be published between now and the implementation of shared parental leave.

We will be keeping member companies informed of the changes and will be updating our standard documents as and when necessary.

Further help

EEF will be running a series of half day seminars, focussing on the extension of the right to request flexible working but also taking an early look at the impact of shared parental leave. These seminars will run from February next year. For more details, and to book your place, click here.

To see the full Government announcement, click here.

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Media Team 020 7654 1576

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