Employment - Who’s holding the baby? - The Government's plans for flexible parental leave

March 2012

Contacts

Paul Griffin

Transcript

Introduction

Hello and welcome to the latest in our series of employment videos.

In May last year the Government published its Consultation on Modern Workplaces which set out a number of proposals. In today’s video I’m going to discuss one of these: flexible parental leave.

The current system of maternity and parental leave

Currently, an employed mother is entitled to up to 52 weeks of statutory maternity leave. Of that leave, 39 weeks are paid - 6 weeks at 90 per cent of salary and the remaining 33 weeks at a flat statutory rate.

Employed fathers who qualify, are entitled to up to two weeks statutory paternity leave which is paid at a flat rate. They may also be eligible for additional paternity leave. This means that once the baby is 20 weeks old and, if the mother has returned to work, the father may take up to 26 weeks additional paternity leave including the balance of any remaining pay.

Parental leave is currently limited to 13 weeks unpaid parental leave per parent per child, which can be taken up until the child’s fifth birthday. In the case of a child with a disability this is 18 weeks and can be taken up until the child’s 18th birthday.

The proposed amendments

The Government wants to give parents the freedom to make arrangements which suit their families and allow a balance between work and family commitments. It therefore intends to introduce a concept of shared parental leave.

Under the proposals, a woman will retain an 18 week period of maternity leave which must be taken in a continuous block around the time of the birth. She will also retain the current statutory maternity pay and maternity allowance arrangements during this period.

Fathers will continue to receive two weeks paid paternity leave around the time of the child’s birth.

The remaining 34 weeks of maternity leave will be reclassified as parental leave and can be shared between both parents. If a mother wants to, she can continue to combine maternity and parental leave and take the same amount of statutory leave as she takes now. Within that leave period each parent will have exclusive use of four weeks’ paid leave which will incentivise greater involvement by fathers.

As regards pay, the remaining 21 weeks of what is currently maternity pay will be paid in a similar way to maternity pay, but will be reallocated as parental pay.

Flexible approach

The Government wants to encourage a more flexible approach on how parental leave can be taken. This could mean allowing leave to be taken in blocks of time, for example, returning to work after taking an initial period of leave and then taking further parental leave at a later stage.

Another possibility would be allowing an employee to take their entitlement as part time working: For example, returning to work after maternity leave and then taking two days per week parental leave to facilitate part time working for the first year. Although employers will not have the right to object to how much leave each parent takes overall, their agreement will be required for parents to take the leave in a flexible manner. If agreement can’t be reached, the default provision will be that the leave will have to be taken in one continuous block.

It’s also proposed that as with the existing arrangements for additional paternity leave, parents should give two months notice of their plans to take parental leave. The notice should be signed by both parents so that employers can be confident that the request is genuine.

Timing

The Government’s aim in the consultation was to introduce the scheme in April 2015 subject to affordability. The consultation closed in August 2011 and the Government's response is expected soon.

However, in March 2010, the EU Council of Ministers adopted a new Parental Leave Directive which increases parental leave entitlement from three to four months. EU member states have two years to implement the Directive into national law, although a further year can be given to take account of particular difficulties.

The Government has confirmed that it will not implement this new EU Directive until March 2013, because of the thorough review of parental leave undertaken as part of the Consultation on Modern Workplaces.

Business leaders are critical of the proposals for flexible parental leave, pointing out that the UK already has one of the most generous set of maternity leave rights. In addition, there is an argument that such flexibility would make it difficult for smaller employers to plan their employment needs. Another issue which may arise is what will happen if an employer enhances an employee’s pay while on maternity leave. Should a father be entitled to the same enhancement on parental leave?

Conclusion

This video is intended to give you an overview of the Government’s proposals for flexible parental leave. We shall of course let you know the outcome of the proposals but in the meantime if you would like details of other proposals in the Consultation or have any questions on any aspects of today’s topic, then please don’t hesitate to contact us.

Thank you

Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members (“the Norton Rose Fulbright members”) of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients. This publication was produced prior to 3 June 2013 when Fulbright & Jaworski LLP became a member of Norton Rose Fulbright Verein.

References to “Norton Rose Fulbright”, “the law firm”, and “legal practice” are to one or more of the Norton Rose Fulbright members or to one of their respective affiliates (together “Norton Rose Fulbright entity/entities”). No individual who is a member, partner, shareholder, director, employee or consultant of, in or to any Norton Rose Fulbright entity (whether or not such individual is described as a “partner”) accepts or assumes responsibility, or has any liability, to any person in respect of this communication. Any reference to a partner or director is to a member, employee or consultant with equivalent standing and qualifications of the relevant Norton Rose Fulbright entity.

The purpose of this communication is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of any Norton Rose Fulbright entity on the points of law discussed. You must take specific legal advice on any particular matter which concerns you. If you require any advice or further information, please speak to your usual contact at Norton Rose Fulbright.