The government's Work and Families Act has now passed into law and with it comes new rights for employees and new administrative obligations for employers.
The centrepiece of the new legislation is the enhancement of maternity and paternity rights, though there is also a significant change to the rules on flexible working.
The period of statutory maternity leave is being extended to nine months from April 2007. The government has given itself the power to further extend this to 12 months, and is committed to taking full advantage of this by the end of the current Parliament.
Maternity leave is split into ordinary and additional leave. At present, ordinary leave is available to all, while additional leave is available only to those with 26 weeks' continuous service with the employer by the beginning of the fourteenth week before expected confinement. Under the new legislation that qualification period will no longer apply.
The period of notice for returning to work is also being increased. Currently, when an employee wishes to return earlier than scheduled from her maternity leave, she has to give 28 days' notice. This is to be extended to eight weeks - a plus for employers as well.
An interesting innovation is 'Keep in Touch Days', whereby employer and employee can agree that the latter will work for up to 10 days during the period of leave, without bringing the period of leave to an end.
The biggest change relates to paternity rights. Couples can decide that one or the other will be available to look after the child during the first year of its life. Currently, new fathers have the right to take two weeks of statutory paternity leave within the first eight weeks after birth or adoption. Under the new law, fathers who meet certain qualifying criteria will be able to take an additional period of paternity leave, some of which will be paid.
Additional leave will only be available to fathers where the mother has returned to work after taking her
maternity leave. For this reason, the regulations are likely to provide that the new paternity leave may only be commenced 20 weeks after the child's birth (or in the case of adoption, after the date of placement). There is likely to be some flexibility in this to allow for a gap between the mother's return to work and the father starting his additional leave. All leave must be taken before the child's first birthday.
Additional Statutory Paternity Pay (ASPP) will be available only where the mother or adopter has returned to work and has some of her entitlement to Statutory Maternity Pay, Maternity Allowance or Statutory Adoption Pay left at the time of her return. The mother will retain the right to take her full entitlement to leave and pay.
Eligibility may turn out to be a headache for employers because of its potential for abuse. The government has proposed that the new rights should be available not only to the father of a child but to the mother's husband or 'partner' (including civil partner), provided he assumes responsibility for bringing up the child.
The right to request flexible working arrangements is to be extended. Currently, parents of children up to six have the legal right to ask their employer for permission to vary their contracts of employment so as to allow them to adopt alternative working patterns. The right is only to ask for such permission; it is up to the employer to decide whether or not to grant it, but refusal is only possible on one of the stated grounds. From April 2007, employees who have caring responsibilities with respect to older children or adult relatives will also have the right to ask for flexible working. The grounds for refusal will be the same as they are now.
The Bill also gives the government the power to increase the statutory leave entitlement, currently set at 20 days. Some employers have been requiring staff to take bank holiday absences out of their entitlement. This loophole will be closed by increasing the entitlement to 28 days, to include bank holidays. The government is currently consulting with business as to whether employees should be free to carry forward any unused proportion of the additional eight days leave to the following year, and also whether staff should have the legal right to commute any of that leave to cash.
All these changes are likely to come into full effect in April 2007.
For more information, go to www.dti.gov.uk/employment/workandfamilies or alternatively visit www.accaglobal.com.
John Davies FCIS is head of business law at the Association of Chartered Certified Accountants.
The centrepiece of the new legislation is the enhancement of maternity and paternity rights, though there is also a significant change to the rules on flexible working.
The period of statutory maternity leave is being extended to nine months from April 2007. The government has given itself the power to further extend this to 12 months, and is committed to taking full advantage of this by the end of the current Parliament.
Maternity leave is split into ordinary and additional leave. At present, ordinary leave is available to all, while additional leave is available only to those with 26 weeks' continuous service with the employer by the beginning of the fourteenth week before expected confinement. Under the new legislation that qualification period will no longer apply.
The period of notice for returning to work is also being increased. Currently, when an employee wishes to return earlier than scheduled from her maternity leave, she has to give 28 days' notice. This is to be extended to eight weeks - a plus for employers as well.
An interesting innovation is 'Keep in Touch Days', whereby employer and employee can agree that the latter will work for up to 10 days during the period of leave, without bringing the period of leave to an end.
The biggest change relates to paternity rights. Couples can decide that one or the other will be available to look after the child during the first year of its life. Currently, new fathers have the right to take two weeks of statutory paternity leave within the first eight weeks after birth or adoption. Under the new law, fathers who meet certain qualifying criteria will be able to take an additional period of paternity leave, some of which will be paid.
Additional leave will only be available to fathers where the mother has returned to work after taking her
maternity leave. For this reason, the regulations are likely to provide that the new paternity leave may only be commenced 20 weeks after the child's birth (or in the case of adoption, after the date of placement). There is likely to be some flexibility in this to allow for a gap between the mother's return to work and the father starting his additional leave. All leave must be taken before the child's first birthday.
Additional Statutory Paternity Pay (ASPP) will be available only where the mother or adopter has returned to work and has some of her entitlement to Statutory Maternity Pay, Maternity Allowance or Statutory Adoption Pay left at the time of her return. The mother will retain the right to take her full entitlement to leave and pay.
Eligibility may turn out to be a headache for employers because of its potential for abuse. The government has proposed that the new rights should be available not only to the father of a child but to the mother's husband or 'partner' (including civil partner), provided he assumes responsibility for bringing up the child.
The right to request flexible working arrangements is to be extended. Currently, parents of children up to six have the legal right to ask their employer for permission to vary their contracts of employment so as to allow them to adopt alternative working patterns. The right is only to ask for such permission; it is up to the employer to decide whether or not to grant it, but refusal is only possible on one of the stated grounds. From April 2007, employees who have caring responsibilities with respect to older children or adult relatives will also have the right to ask for flexible working. The grounds for refusal will be the same as they are now.
The Bill also gives the government the power to increase the statutory leave entitlement, currently set at 20 days. Some employers have been requiring staff to take bank holiday absences out of their entitlement. This loophole will be closed by increasing the entitlement to 28 days, to include bank holidays. The government is currently consulting with business as to whether employees should be free to carry forward any unused proportion of the additional eight days leave to the following year, and also whether staff should have the legal right to commute any of that leave to cash.
All these changes are likely to come into full effect in April 2007.
For more information, go to www.dti.gov.uk/employment/workandfamilies or alternatively visit www.accaglobal.com.
John Davies FCIS is head of business law at the Association of Chartered Certified Accountants.
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