Changing the ‘clapped-out’ rules on flexible workingAdd To My Clippings Alt Text


What should we make of the Government’s plans to shake up the law on flexible working and maternity/paternity leave, unveiled today by deputy prime minster Nick Clegg? Criticising the current rules as outdated, Nick explained that the overhaul is designed to get the country working more flexibly and address the fact that modern families do not necessarily consist of “Mum in the kitchen and Dad in the office”.

Currently, only those who have caring responsibility for children or adults have the right to make a flexible working request - for example, to work from home or enter a job-sharing arrangement. Under the new proposals, this right will be extended to all employees from 2014.

The hope is that normalising flexible working in this way will help remove the stigma often attached to it - especially for working fathers - and also help enable “career mums” both to be a mum and have a career. Not only will mothers be able to request to work flexibly, as they can at present, but other relatives such as grandparents will also be allowed to make a request in order to help out with childcare.

Nick also announced that, from 2015, mothers and fathers will be able to share 12 months’ “maternity” leave. In effect, mothers will be able to give up a proportion of their maternity leave and choose to share flexible parental leave with their partner instead. Currently, although fathers (or same-sex partners) can take additional paternity leave, they can only do so 20 weeks after the child has been born and the mother must have returned to work.

Under the new scheme, only the mother will be allowed to take maternity leave in the first two weeks' following the birth (with the father or same-sex partner also being able to take paternity leave at this time). But after that, the parents will be free to choose how to “divvy up” the rest.

For example, they may decide that the mother returns to work after two weeks and the partner takes the remainder of the leave. Or they may alternate the leave throughout the year, or even both take six months off together. The only rule is that no more than 12 months can be taken in total, with no more than nine months at guaranteed pay. Statutory pay for this type of leave will be the same as statutory maternity pay.

These proposals potentially herald a sea-change for British workplace culture, which many people would welcome. But how much difference are they really likely to make, at least in the short to medium term? Fathers have had the right to take 26 weeks’ additional paternity leave for some time, yet very few have actually done so. Likewise, they have the right to make flexible working requests, but these are relatively rare. It appears that a “caveman mentality” is still prevalent in our society!

Many employers will be concerned about how the reforms will work in practice. Nick may contend that “a modern workforce is a flexible workforce”, but the changes could cause major headaches for employers – for example, dealing with numerous flexible working requests and managing employees who wish to alternate maternity/parental leave with their partner. Further problem areas may include working out how much statutory parental pay or normal salary is due, calculating holiday entitlement and finding temporary short-term replacements to fill roles during the periods of absence.

In addition, there is some uncertainty over whether employers who grant enhanced maternity pay to their female staff may run the risk of equal pay claims if they fail to offer similar packages to male employees taking flexible parental leave.

Hopefully, these and other potential pitfalls can be ironed out during the lengthy process of developing the necessary legislation and preparing for its implementation.

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October 2016