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Expert Comment: New plans for flexible parental leave

Workplace Monday 19 November 2012

Annmarie Lowther, HR Adviser at Liverpool Hope, looks at government plans to increase flexible working options for new parents.

The government recently announced plans to implement an additional range of flexible working options for new parents. Under the plans shared by Nick Clegg, mothers will be able to return to work two weeks after childbirth and share the rest of their maternity leave with their partner.

These changes will be implemented in 2015 and will reportedly give women a 'clearer route' back to work. Parents will be able to take time off together or to cover different periods and all employees will have the right to request flexible working. (These rights are likely to be subject to requirements for parents to meet qualifying criteria such as length of service). As is now the case, similar rights and arrangements will be mirrored for adopting parents and parenting partners will have similar decisions to make in terms of apportioning leave between them. This is in contrast to current arrangements (implemented in April 2011), whereby one partner can take up the remainder of leave only where the other partner has returned to work.

The current arrangements for paternity leave (now two weeks) will be reviewed in 2016.

This is promising news for new parents and potentially opens up options for parents to have (if they chose and are able) greater access to hands on childcare in the crucial first year. However, details of how this will be managed are in short supply at the moment.

It is hard to assess uptake or likely changes in familiar patterns of childcare when issues of operation are as yet unclear: couples are urged to be “open” with employers and give them “proper notice.” Rights are likely to be exercised against a duty on the employer to deal with requests reasonably in terms of time and approach and we can expect a statutory code to provide guidance about what “reasonable” means. Such codes tend not to be exhaustive and case law may be required to supplement this.

The current right for fathers to share up to six months of the mother’s 52 weeks leave has not been taken up in great numbers within Hope and the reasons may be because there are practical obstacles to be overcome by parents and employers in these extended rights. Contracts of employment detailing the terms of maternity/adoption leave are likely to vary significantly from employer to employer. This can inhibit free and early exchange of information between employers to establish the particular terms of a maternity/adoption leave – this, of course, then has an impact on the rights that the other partner may take up in the stead of the other on their return to work. The mother’s statutory or contractual position dictates the maternity pay she receives.  If there is significant pay disparity between the partners this will factor into the economic picture, which may well be driven by deciding who loses the least pay if they take this leave.

The extension of the right to request flexible working is potentially the biggest news here. At the moment only employees with eligible carer responsibilities are entitled to make a flexible working request. The employer is not obliged to grant the request but must look closely at the request against a statutory duty. If these plans proceed, all employees will be able to make these requests. The government is clearly extending their duties under European directives to increase flexibility or “flexicurity” in the workplace and it will be interesting to see which groups of employees and in what numbers take up this new right. 

Downing Street (in a rather optimistic manner) said administration of the new rules will be as light-touch as possible. This suggests that the government may be treating that which is complex as simple and leaving employers to hash out the details. Whether or not the combined efforts of government and employers will overcome financial and traditional constraints on patterns of childcare or working remains to be seen, but an extended floor of rights in relation to flexible working and the availability of choice for parents in childcare is to be welcomed.


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