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The Government has now published its long-awaited consultation on a new system of shared parental leave and extending the right to request flexible working to nearly all employees. Unexpectedly, the consultation also seeks views on requiring employers who lose an equal pay claim to undertake and publish equal pay audits, and changing the way the Working Time Regulations 1998 interact with annual, sick and family-friendly leave. The 'Modern Workplaces' consultation runs until 8 August 2011.
Under the proposed system of parental leave, while the initial portion of leave will still be reserved to the mother, much of it will be shared as the parents see fit. It is proposed that:
18 weeks' maternity leave will be available to be taken in a continuous block around the time of birth. The current statutory maternity pay and maternity allowance arrangements for this period, and two weeks' (ordinary) paternity leave and pay, will be retained
the remainder of existing maternity leave would be reclassified as parental leave. Each parent would have four weeks' paid leave exclusive to them, with the remaining weeks available for either parent on an equal basis (similar provisions will apply for adopters and same-sex couples), and
the existing right to unpaid parental leave beyond the first year of the child's life will be incorporated into the new scheme.
The consultation also considers whether to extend the limit for taking unpaid parental leave beyond the child's fifth birthday, and whether to give fathers the right to unpaid leave to attend antenatal appointments. The proposed changes to parental leave will not be in place before 2015.
The proposed extension of the right to request flexible working to all employees employed for 26 consecutive weeks would:
replace the existing statutory process for considering requests with a duty to consider requests 'reasonably' alongside a new code of practice, and
allow - but not require - employers to prioritise competing requests to take account of the employees' personal circumstances. However, employers would still have to show that the competing requests could not be accommodated on business grounds.
Currently, employees may make only one request for flexible working in any 12-month period. The consultation seeks views on allowing an additional request within 12 months if the employee's original request states it is only expected to be a temporary arrangement, and whether the extension should apply to micro-businesses or start-ups during the moratorium on new regulation.
The proposed changes to the Working Time Regulations take account of European Court of Justice case law that has established that workers unable to take their annual leave due to sickness absence or maternity or parental leave in the current leave year must be able to carry it forward into the following leave year. The Government proposes that:
where someone has been on sick leave, employers may limit the ability to carry over annual leave to the four weeks required under the Working Time Directive (No.2003/88) (i.e. excluding the additional 1.6 weeks given by the Regulations and any further contractual leave), and
employers may insist that leave untaken due to sickness absence must be taken in the current leave year, where possible, rather than being carried forward. Employers may also defer that leave until the following year when this can be justified in terms of business need.
Views are also sought on increasing flexibility for employers around the operation of statutory annual leave. Employers could, for instance, be allowed to 'buy out' the additional 1.6 weeks or require employees to defer that leave until the first six months of the following leave year if this can be justified in terms of business need.
Finally, the consultation considers imposing a mandatory equal pay audit on employers found by a tribunal to have discriminated on the ground of sex with regard to pay. The tribunal would be obliged to order the audit unless satisfied that it would not be productive to do so because:
an audit has been conducted in the last three years
the employer has other appropriate means of ensuring a non-discriminatory pay structure e.g. clearly transparent pay structures, or
it would not be productive to order an audit in the particular circumstances.
The consultation also seeks views on the appropriate sanction for failure to comply with an audit requirement.
The Government aims to legislate on flexible parental leave, flexible working and equal pay as soon as possible in this Parliament. Secondary legislation will be introduced to amend the Working Time Regulations, with implementation likely to be in 2012.
© Incomes Data Services Ltd, 2011
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