A public consultation exercise on extending the statutory rights of parents and carers to paid leave and flexible working closed in the UK in May 2005. This article outlines the government’s proposals and the social partners’ responses.
In February 2005, the Department of Trade and Industry published a consultation document entitled Work and families: choice and flexibility. The consultation exercise stems from the Labour Party government’s pre-election commitment further to improve maternity leave and 'family-friendly' working and its aim to give families more choice about how to balance their work and caring responsibilities (UK0504110F).
The consultation covered four main commitments:
- to extend maternity and adoption pay from six months to nine as a step towards the goal of 12 months’ leave by the end of this parliament. There are also proposed changes in maternity leave entitlements;
- to enable mothers to transfer a proportion of their maternity leave and pay to fathers, plus options for making the administration of leave and pay simpler;
- to promote the benefits of flexible working as good for parents and good for business. Views are also sought on the impact of an extension in scope to cover carers of adult relatives and/or parents of older children; and
- to support more effective communication between employers and employees during maternity leave. Specifically, there are proposals to extend the notice period mothers give when preparing to return to work.
The government will be introducing a parental rights Bill in the 2005-6 session of parliament (UK0506102N), the detailed provisions of which will be shaped by the consultation exercise, which closed on 25 May 2005. The responses of key employer and trade union organisations are summarised below.
Union response
The present position of periods of unpaid maternity and parental leave is one that the Trades Union Congress (TUC) sees as encouraging mothers to return to work earlier than they would like and discouraging fathers from playing an equal part in parenting. Therefore, the TUC’s response broadly welcomes the government’s proposals to improve maternity and paternity pay and leave In particular, the TUC supports the abolition of unpaid 'additional maternity leave' and the extension of paid 'ordinary maternity leave' to 12 months, with the right to return to the same job. This would be particularly beneficial to the low paid. However, the TUC believes that the proposals do not go far enough towards providing minimum parental rights for all workers. The main criticisms and TUC proposals are as follows.
- At present, maternity rights apply only to employees, but the TUC believes that rights should be extended to all workers paid under the PAYE system (whereby income tax is collected direct from earnings), including agency and other casual workers. This would also make the system simpler for employers to understand and administer.
- Rather than introducing a new concept of splitting part of the maternity leave entitlement and giving part to the father, the government should stand by its earlier proposal to extend paid maternity leave to a year and in addition introduce extra paid paternity leave. The latter would give fathers an individual right to paternity leave regardless of whether the mother is in paid employment, encouraging them to spend more time helping to raise their children.
- Paid parental leave (the TUC proposes 13 weeks) should be available to both parents after the period of paid maternity/paternity leave with the possibility to take this flexibly and certainly in blocks of less than a week. This would assist parents in juggling the demands of work and family life.
- The TUC strongly supports the proposal to introduce a basic legal framework encouraging employers and parents to agree requests for reduced hours/flexible working. However, the TUC wants an explicit right to have such requests granted unless the employer can justify refusal on objective grounds. In addition the TUC believes there is a strong case for extending the right to request flexible work to all carers and parents of older children.
- On the basis of a lack of evidence showing that employers experience problems accommodating women returning to work, the TUC does not support proposals to extend the notice periods that women are required to give. Instead, it proposes that sensitive communication is maintained between employers and mothers during maternity leave in order that the return to work is as smooth as possible.
- The TUC registers its disappointment that the consultation document does not make explicit reference to same-sex couples.
Employer responses
The submission of the main employers’ organisation, the Confederation of British Industry (CBI), accepts in principle the government’s desire to extend family-friendly rights further. It states that employers recognise the positive impact that family-friendly policies can have in terms of recruitment and retention. However, CBI members have expressed concern about the cumulative impact of employment regulation and have urged the government to seek to reduce the overall administrative burden on employers.
Specifically, the CBI believes that there should be compensating changes to reflect the increased burden on employers. There is no disagreement with the proposal to extend paid maternity leave to 12 months - so long as the right to return to the same job is not extended beyond the current six months. Nor is there disagreement with the principle of allowing mothers to transfer part of their leave and pay to fathers. However, employers are concerned about how this will work in practice and therefore the CBI proposes that this may happen only after six months and if employers receive three months’ notice. On requests for flexible working, the CBI argues that employers are best placed to decide what works in their organisation and therefore there should be no requirement to justify any refusal. The CBI also wants to see the right to request flexible working extended to other carers rather than parents of older children. However, it believes that this requires careful consideration and more detailed consultation to ensure that any extension does not cause excessive disruption to business.
The CBI supports the government’s commitment to look at the issue of employer-employee contact during maternity leave and how to support employers and good practice. It registers that not knowing whether or not a mother intends to return to work is one of the biggest concerns among businesses. In order to allay concerns about intruding or perceptions of harassing women on maternity leave, employers would like a specific date at which they can make contact with a mother in order to determine when the date of return will be. In addition the CBI wants an extension in the length of notice required to return early in order to help employers with planning.
The Federation of Small Businesses has registered its concern about new rights and the absence of a 'proper assessment' of the impact so far. It has stated that the proposal to extend paid maternity leave could 'devastate' some small firms and that requests for flexible working 'get the hearing they deserve' in small firms because employers know their staff personally.
Commentary
According to a recent report by the Equal Opportunities Commission (EOC), every year in England and Wales about 1,000 women take legal action against their employer, claiming that they were sacked because of their pregnancy. The EOC claims that this is likely to be the tip of the iceberg. Some of the main issues the EOC identifies that many women face during pregnancy and after childbirth are:
- being denied flexible hours;
- being forced to return to a lower status job; and
- being made redundant or not being consulted on changes to the organisation while on maternity leave.
In addition, a recent survey by the Chartered Institute for Personnel and Development (CIPD) found that 41% of fathers feel that the current provision of two weeks’ paternity leave is not enough. If they became a father again, 46% said they would be very or fairly likely to take paternity leave at the current flat-rate payment of GBP 100 per week. 80% said they would do so if paid at 90% of full pay and 87% if paid at full pay. The proposals contained in the consultation document have to be assessed against this background.
While it appears that in principle the social partners are broadly in agreement with supporting parents to have more choice over how to care for their children, it is clear that there are different agendas. The TUC’s greatest concern is to champion the rights of workers and to prioritise the needs of the lower paid. The latter is important because people who are lower paid clearly have fewer choices about how to balance their need to earn with the care needs of their children. Meanwhile the employers’ lobby has far more to say about extending the right to request flexible working to other carers and parents of older children than it does about rates of maternity and paternity pay. The proposal to extend the 'right to request' is therefore one of the most controversial as it seems that employers, especially small firms, perceive this as the most disruptive issue for the business.
However, even though it is clear that many parents, especially the lower paid, have pressing financial needs during the early years of parenthood that would be alleviated by the proposals to extend paid maternity, paternity and parental leave, it is the right to request flexible working that will help families achieve better work-life balance in the longer term. For example, parents are legally obliged to ensure that their children attend school and can face imprisonment if their children become persistent truants. However, if work is inflexible parents of difficult older children may not be able to arrange adequate and appropriate supervision. Similarly, many people face caring responsibilities for elderly and disabled relatives long after the early child-rearing phase is over. Introducing the concept of 'carers’ leave' rather than parental leave would prove more revolutionary, but this does not seem to be on the agenda at present.
Clearly, the government will not want to alienate the business lobby and it is important that whatever changes are introduced must be practical and manageable for employers. To support any changes the social partners agree that it will be necessary to promote more widely and effectively the benefits for business of flexible working, dispelling any myths about the burden it places on business. An extended 'right to request' is supported by one employers’ interest group - Employers for Carers- that disseminates information on the business benefits. In any case it is not at all clear that firms would be inundated with requests if the right is extended. The DTI’s latest work-life balance survey found that 15% of requests to work flexibly had been made by employees with children aged 12-16, compared with 22% by employees with children under 6. (Gill Kirton, Queen Mary, University of London)