New rules add to choices, particularly for parents, says Chris Phillips
Today’s workplace is almost unrecognisable from a decade ago. Technology has been a major force for change but that isn’t the whole story. Politics has played its part and what began in earnest under Tony Blair with Fairness at Work has continued gathering momentum ever since. Underlying all of this has been a seismic shift away from conventional, full time working in an office or on a factory floor, toward something much more diverse. We exist now in an age of buzz-words. Hot-desking, home-working, zero hours and out-sourcing. Whatever you call how so many of us now work, it can be captured in one word: flexibility.
Recent and forthcoming changes illustrate this perfectly. From December this year, new rules on Shared Parental Leave are introduced and will apply to babies expected and children placed for adoption, on or after 5 April 2015. Out goes the little-used Additional Paternity Leave and in comes what is hoped is a more flexible approach to parental leave. Detailed eligibility and notification requirements apply but in essence, parents can now apportion statutory leave and pay between them. According to Nick Clegg (the Liberal Democrats have been the driving force behind the new rules) it’s all about creating choices for parents in how they bring up their children in the first year of life.
For health and safety reasons, mothers must still take the first two weeks post-birth as leave (a little longer if they work in a factory), but the remaining 50 weeks of leave and 37 weeks of pay can be shared between parents. They will be able to take parental leave in up to three separate blocks each or at the same time, any time before the first birthday. More blocks are possible, if the employer consents.
Naturally, employers will be concerned about implementation of the new rules and the administrative burden. However, they could be forgiven for wondering why they need spend time and money on a scheme which according to government predictions will be used by less than 8 per cent of those eligible.
Still, employers must be ready for change and familiar with the rules to respond to requests for leave, as these could arrive before Christmas. Assuming eligibility and notice requirements are met, standard requests cannot be turned down. So, now is probably a good time to refresh your handbooks and policies and for managers to brace themselves.
These changes follow close behind a general widening of the scope of flexible working arrangements earlier this year which now become available not only to parents but also, well, anyone really.
Before June, all employees with at least 26 weeks’ service could make a flexible working request to care for a child or a dependent adult. Employers had and still have a duty to consider such requests. An application doesn’t have to be accepted in every case but the system is designed to encourage discussion, compromise and agreement. Helpfully for employers, they can justify turning down a request on the basis of cost, adverse impact on quality of service or on ability to meet customer demand. Potential impact on work performance or issues around recruiting additional staff to cover the absent worker could also be relevant as well as problems with reorganising remaining staff around the request or planned structural change.
Now, all employees with 26 weeks service, regardless of parental responsibilities, can make a request. This means in theory, someone can ask to reduce, compress or otherwise re-arrange their hours so they can go back to college part time, to take a creative writing course or learn how to make dry-stone dykes. The boundaries are almost endless. Parents and carers remain the obvious applicants but it’s no longer exclusive to them.
The process for considering applications has gone, replaced with an obligation to consider requests “in a reasonable manner”. The reasons for refusal remain. The emphasis on discussion and compromise stays but so too does the risk of claims, if consideration isn’t given, especially to applications from parents or carers.
Regardless of what you may think, you don’t need to be a weatherman to see which way the wind is blowing. Changes in the law simply reflect the fact that, fewer of us work full time; men aren’t necessarily the main bread winners in many families and the pressure to cut cost in an era of austerity and better technology, mean we work on the move, or at home just as much as in an office.
• Chris Phillips is employment law partner at Simpson & Marwick www.simpmar.com