The Government has published a consultation paper, entitled Consultation on Modern Workplaces, which puts forward proposals for creating “a culture of flexible, family-friendly employment practices” that will “create a society where work and family complement one another.” In other words, the Government wants to create legislative change and cultural change in the workplace.
There are four elements to the proposals:
1. A system of flexible parental leave;
2. A right for all employees to request flexible working;
3. Amendments to the Working Time Regulations; and
4. Measures to encourage equal pay
The proposals
1. Flexible Parental Leave
These proposals, which are not anticipated to come into force until 2015, will essentially mean that parents will share parental leave.
* Retain 18 weeks’ maternity leave and pay exclusively for mothers around the time of the baby’s birth; and
* Reclassify the existing entitlement to a further 34 weeks’ maternity leave as “flexible parental leave”. Four weeks will be exclusive to each parent and will be taken in the first year, with the remaining 30 weeks available to either parent.
The consultation also considers (1) whether parental leave could be taken in “chunks” (i.e. broken into two or more periods), or on a part-time basis; (2) whether the age limit for taking unpaid parental leave should be increased from the age of five to either eight, 12, 16 or 18; and (3) whether a new statutory right should be designed to give fathers the right to paid leave to attend a specific number of ante-natal appointments.
2. Flexible Working
The consultation proposes that the right to request flexible working should be extended to all employees.
* Extend, by 2013, the right to request flexible working to all employees who have been working for their employer for 26 consecutive weeks (and not just to those with children under 17 years of age, or disabled children under 18 years of age);
* The existing statutory procedure for considering requests will be replaced by a new duty on employers to consider requests “reasonably.” The Government will consider publishing a statutory code of practice for businesses to give employers guidance on how to handle requests; and
*Allow – but not require – employers to prioritise competing flexible working requests to take account of the employees’ personal circumstances. This would mean that employees making a request due to parenting or caring responsibilities could be given higher priority than those making a request for other lifestyle reasons.
NB: There are no plans to alter the current eight business reasons for a business to turn down a flexible working request.
Currently, employees are only permitted to make one request for flexible working in any 12-month period. However, the consultation seeks views on permitting an additional request within 12 months if the employee’s original request states it is only expected to be a temporary arrangement.
3. Working Time Regulations (WTR)
The proposed changes to the WTR, anticipated to be made in 2012, enshrines recent European Court of Justice case-law. This case-law established that employees who cannot take all their annual leave entitlement, due to sickness absence or maternity/parental leave, must be permitted to carry it forward into the following annual leave year.
The Government also proposes that:
* Where someone has been on sick leave, employers may limit an employee’s ability to carry over annual leave to the four weeks required under the WTR. The employee would therefore lose the extra 1.6 weeks they receive under the WTR;
* Amend the WTR to permit the carry over of annual leave due to maternity, paternity, parental or adoption leave – this will include the full 5.6 weeks of leave entitlement per year; and
* Employers may insist that annual leave not taken due to sickness absence must be taken in the current leave year, where possible, rather than being carried over. Employers may also defer that annual leave until the following year if it can be justified to be in the interest of the business.
Views are also sought on increasing flexibility for employers. For example, employers could be allowed to ‘buy out’ the additional 1.6 weeks of annual leave, or require employees to defer that annual leave until the first six months of the following leave year, if this can be justified to be in the interest of the business.
4. Equal Pay
The consultation considers imposing a mandatory equal pay audit on those employers who have been found by an employment tribunal to have breached equal pay legislation. The employment tribunal would be obliged to order the audit unless it believed it would not be productive to do so – e.g. if an audit had been conducted in the past three years, or if the employer has other appropriate means of ensuring a non-discriminatory pay structure.)
The consultation also seeks views on the appropriate sanction for an employer’s failure to comply with an audit requirement.
The Government has made clear in the consultation paper that there will be exemptions for micro-businesses (i.e. those with fewer than ten employees) and new start-up businesses.
All responses to this consultation are required by 8 August 2011.