Part 1 of The Employment Act 2002 sets out the framework of the new provisions for paternity and adoption leave and pay and the reforms to the current maternity pay and leave schema. Part 4 includes the new right to request flexible working. The Act will be supplemented by regulations - still in draft form at present. They are planned to come into force in April 2003, so will affect parents of children conceived this August onwards.
Paternity Leave and Pay
Currently, under the Maternity and Parental Leave Regulations 1999 each parent is entitled to take 13 weeks unpaid parental leave to care for a child. Fathers do not have any statutory right to paid leave. The Employment Act creates the right to two weeks statutory paid paternity leave to be taken within eight weeks of the child's birth, or in the case of adoption, to be taken within eight weeks of the placement for adoption.
Paternity leave is in addition to the existing 13 weeks unpaid parental leave.
The leave is available for the specific purpose of caring for a newborn child or a newly placed child for adoption and for the purpose of supporting the mother or adoptive parent.
Eligibility
The right will be subject to various conditions set out in the draft Maternity, Paternity and Adoption Regulations. They provide that to qualify for paternity leave an employee must satisfy that s/he:
1 has been continuously employed for a period of not less than 26 weeks by the end of the 15th week before the expected week of the child's birth or the week in which the child's adopter is notified of being matched with the child for the purpose of adoption; and
2 has or expects to have responsibility for the upbringing of the child, and
3 is the biological father of the child or is married to, or the partner of, the child's mother or adopter, which will therefore cover gay couples as well as unmarried heterosexual parents; and
4 has given notice as specified by the Regulations. The draft regulations include model documents for compliance with the notification obligations.
Rights during and after paternity leave
The draft regulations provide that during paternity leave the employee will be entitled to the benefit of, and bound by, their terms and conditions of employment, excluding those about 'remuneration', as if they were not absent. Remuneration is defined in the draft regulations as only sums payable as wages or salary and therefore may not include bonuses or benefits in kind.
On return to work, the employee is entitled to their job and to the terms and conditions which would have applied, had they not been absent.
The current protection from detriment and dismissal relating to maternity and parental leave rights will be extended to employees taking paternity leave.
An employee who qualifies for paternity leave will, however, be prevented from taking this leave if s/he has also decided to take adoption leave (see below).
In the case of multiple births, the paternity leave period is not multiplied by the number
of babies born: it remains at two weeks.
Statutory paternity pay (SPP)
An employee who takes statutory paternity leave will be entitled to statutory paternity pay which will be financed by the government and administered by employers in the same way as the standard rate of maternity pay. The rate proposed for 2003 is the lesser of £100 or 90% of the employee's average weekly earnings. As with paternity leave there are number of qualifying conditions such as employees will be required to have completed 26 weeks of continuous service by the fifteenth week before the child is expected to be born, or by the week in which an approved adoption agency matches an adopter with a child.
Adoption Leave and Pay
The concept of statutory rights to adoption leave received unanimous support during the government consultation process and it seems extraordinary that it does not already exist.
The statutory scheme, due to be operational from April 2003 is set out in the Employment Act (S.3 which amends the Employment Rights Act 1996 part 8 with Ss75A-D) and the draft Paternity and Adoption Leave Regulations.
It aims to mirror maternity leave as closely as possible for around the time of placement for adoption. Male or female employees who satisfy the eligibility conditions may be absent from work at any time during an ordinary adoption leave (OAL) period and an additional adoption leave (AAL) period.
Eligibility
The eligibility conditions relate to notice and evidence requirements including a matching certificate which is intended as the equivalent of a MATB1 from the adoption agency (as opposed to a medical practitioner/midwife) but otherwise mirroring maternity leave notice requirements. So for example there is an Expected Date of Placement (EDP) (rather than an Expected Week of Childbirth) and where the EDP changes, notice of variation must be given of 28 days, unless it is not reasonably practicable.
There will be a service requirement of 26 weeks as at 15 weeks before the EDP, unlike OML, but adoption leave is not available where the child is already known to the adopter such as in step-family arrangements and where fostering precedes adoption.
With joint adoptions (currently only available to married couples) either parent may elect for adoption leave, otherwise it is only the legal adopter of the child who is eligible. In either case however, the parent not taking adoption leave may be eligible for paternity leave (see above).
Rights during and after adoption leave
The period of leave - both Ordinary Adoption Leave (OAL) and Additional Adoption Leave (AAL) will mirror the length of maternity leave - Ordinary Maternity Leave (OML) and Additional Maternity Leave (AML) and there will be identical rights during and after adoption leave as is the case with maternity leave. So for example, there is the same protection from redundancy during adoption leave and co-terminous protection of contractual and employment rights both during and after adoption leave as for maternity leave. Protection from detriment and dismissal will also be extended to adoption leave.
The OAL period will therefore be up to 26 weeks from the date on which a child is placed for adoption (ie. arrives to live permanently with the adopter) or no more than 14 days before the EDP. This is eight weeks longer than the current OML period, which will be increased from April 2003 (see below).
AAL will be for a further 26 weeks after the expiry of OAL, which is also in line with the amended AML provisions to come into force in April 2003.
Statutory adoption pay
The Employment Act 2002 introduces statutory adoption pay (SAP) - again on similar lines to the statutory maternity pay scheme, with government funded employer refunds of between 92% -100% depending on the size of employer. It will be at comparable rates to lower rate SMP for a period of up to 26 weeks - ie to cover the OAL period, but there is no statutory higher rate of SAP, unlike the first six weeks of OML. Three sets of draft regulations are currently out for consultation on the general provisions, weekly rate and administrative arrangements for SAP and SPP.
Maternity leave and pay
There will be changes to both maternity leave and pay as a result of the Employment Act and related regulations.
From April 2003 OML will increase from 18 to 26 weeks and AML will be available for up to a further 26 weeks commencing from the end of OML, instead of the current 29 weeks. The total period of maternity leave available will therefore be exactly one year.
Eligibility
The qualifying service requirements will be simplified. At present three tiers apply - there is no service requirement for entitlement to OML, a requirement of 26 weeks service as at the 15th week before the expected week of childbirth for Statutory Maternity Pay (SMP) and a service requirement of one year for AML. Entitlement to AML will be reduced to match the SMP service qualification. As from April 2003 a woman with 26 weeks service as at 15 weeks before her baby is due will be entitled to both AML as well as OML. AML is unpaid, unless as a contractual entitlement.
The notification requirements will also change, if the regulations do not alter from their current draft provisions. An employee will be required to notify her employer of her pregnancy, the expected week of childbirth and the date she intends to commence her OML in or before the 15th week before the week she expects her baby to be born, which is earlier than the present regime. There will be scope to amend the intended start date of her leave with at least 28 days notice where reasonably practicable. The employer will be under a duty to inform the employee in writing of her leave period and expected week of return.
Trigger rule
The current rule whereby pregnancy related sickness six weeks or less before the expected week of childbirth automatically triggers the employee onto OML will be reduced to four weeks under the draft regulations.
Statutory maternity pay
Statutory maternity pay provisions will also change - the six weeks higher rate of SMP (90% of average pay) will remain, subject to the existing eligibility criteria, but the £75 underpin will go. For the remaining 20 weeks of OML, SMP will be 90% of pay or £100, whichever is the lower under the draft regulations. The notification requirements for receipt of SMP will also change. A woman must inform her employer of the date she expects liability for SMP to begin to increase from 21 to 28 days.
The Maternity Allowance will also be uprated in line with SMP.
Flexible Working
S. 47 of the Act has tried to meet parents' desire for more flexible work patterns in a way that is compatible with business efficiency. This section gives parents the right to apply for flexible working. It amends Part 8 of the Employment Rights Act 1996. Once again the new statutory right set out in the Act is backed up by regulations, currently in draft form, as to eligibility and procedural requirements. These are the draft Flexible Working (Eligibility, Complaints and Remedies) Regulations and the draft Flexible Working (Procedural Require-ments) Regulations.
The right to request
The Act provides for qualifying employees to be able to apply to their employer for a change in their terms and conditions of employment, if a change relates to one of three specified aspects:
the hours or times when he/she is required to work,
the times when he/she is required to work, or
where, as between his or her home and a place business of his/her employer, he is required to work.
There is power for the secretary of state to add to the list by regulation.
In addition, the purpose for applying for the change must be to enable the employee to care for a child.
Any application must be made before 14th day before the day on which the child concerned reaches the age of 6, or if the child is disabled, 18.
It is important to bear in mind that if the request is granted it will be permanent and the employee has no statutory right to revert to their previous contrac-tual terms, although this will not preclude an entirely voluntary agreement being reached between the employee and his or her employer.
Eligibility
Only a 'qualifying employee' can apply for a flexible working arrangement: this will include neither agency staff nor workers who fall outside the definition of employee. There is regulation making power to stipulate service requirements and the draft out for consultation states not less than 26 weeks continuous employment.
The draft eligibility regulations also provides for conditions as to the relationship between the child to be cared for and the employee making the flexible working request. They are twofold Ð he or she must have, or expect to have responsibility for the upbringing of the child and either be the biological parent, guardian, adopter or foster carer of the child, or be married to or the partner of the biological parent etc and be living with the child. The draft definition of partner is a person (whether of a different sex or the same sex) who lives with the child and the mother, father, adopter, guardian or foster parent in an enduring family relationship but who is not a blood relative.
The Act stipulates certain procedural steps that should be taken by both the employee and the employer. The application should state the change applied for, and the proposed date that the employee would like the change to become effective. The employee should also explain what effect this change would have on the employer and how this could be dealt with, as well as stating the relationship between them and the child. If any information within the application is false, the employer may be entitled to take disciplinary action against the employee.
If the employee makes an application, he or she cannot make a further application under this section to the same employer within twelve months of the date of the previous application.
Employer's obligations
Having the right to request flexible working is all very well Ð the punch in the new right comes in what the employer has to do with it. There are both substantive and procedural provisions in the Act. The employer shall only refuse an application if he believes one or more of the following grounds applies:
i the burden of additional costs
ii any detrimental effect on the ability to meet customer demand
iii inability to organise work amongst existing staff
iv inability to recruit additional staff
v detrimental impact on quality
vi detrimental effect on performance
vii insufficiency of work during the period the employee proposes to work
viii planned structural changes.
There is also scope for additional grounds to be included by regulation.
The employer should meet the employee within 28 days of the date the application is made to discuss the application and provide a decision within 14 days after the date of the meeting. If it refuses an application, the notice of the decision must state the grounds for the decision and the employee has a right to appeal within 14 days after receiving the decision to refuse his or her application. An appeal meeting should be held within 14 days of the date of which notice of the appeal is given by the employee, and any employer should, within 14 days after the date of the meeting, provide a decision to the appeal. These time limits can be varied by agreement between the employer and the employee.
The employee will have the right to be accompanied at these meetings. Who qualifies as a companion will be specified by regulation. In the draft regulations for consultation the definition is wider than the current statutory accompaniment provisions in disciplinary and grievance hearings. It also includes 'another member of staff from the workplace' regardless of their competency and training for the task.
If an employer has failed to comply with their duties under the Act in relation to an application, or the employee believes that the decision that the employer has made to reject an application is based on incorrect facts, a complaint can be made to the Employment Tribunal. The tribunal will award compensation on a just and equitable basis and make an order for reconsideration of the application by the employer. The Tribunal does not have power to impose a flexible working arrangement on the employer. The time limit for an application to the tribunal is three months from the date of notification of the appeal decision or breach of duty and time can only be extended if it was not reasonably practicable to comply with the time limit. This mirrors the stricter, unfair dismissal, rather than the discrimination regime where time can be extended if it is just and equitable.
In order to protect any employee who makes an application for flexible working, the Act introduces a right for them not to be subjected to any detriment and where any employee is dismissed for exercising any of these statutory rights, their dismissal will be automatically unfair.
The Act has at least made it a legal obligation on employers to consider adapting their working environments to encourage flexible working and this is supported by the number of procedural steps that must be followed when arriving at their decision, but time will tell whether this legislation has much practical impact.