Work­ers rights lack bite

Em­ploy­ers have lit­tle to fear from chal­leng­ing, seem­ingly dra­co­nian new ma­ter­nity rules

The Herald Business - - Competition Defence • Maternity Rights -

THE gov­ern­ment’s 10-year child­care strateg y bore its f irst leg­isla­tive fruits last year with the pass­ing of the Work and Fam­i­lies Act which is in­tended to give em­ploy­ees stronger and more ef­fec­tive work­place rights in re­la­tion to their fam­ily re­spon­si­bil­i­ties. How­ever, un­like the re­cent pro­hi­bi­tion of dis­crim­i­na­tion on the ba­sis of age, the Work and Fam­i­lies Act is not a leg­isla­tive sea change, but is in­stead an ex­ten­sion of the scope and scale of ex­ist­ing poli­cies in­tro­duced to re­dress the per­ceived im­bal­ance be­tween work and fam­ily life.

Fol­low­ing con­sul­ta­tion, the gov­ern­ment chose to stag­ger the in­tro­duc­tion of the act to save busi­nesses the headache of up­dat­ing a raft of poli­cies in one fell swoop.

Poli­cies that came into ef­fect on Oc­to­ber 1 last year in­clude ex­tend­ing the pe­riod for which a worker is en­ti­tled to statu­tory ma­ter­nity and adop­tion pay from 26 weeks to 39; in­creas­ing the no­tice pe­riod an em­ployee will have to give if they wish to re­turn early from ad­di­tional adop­tion leave or ma­ter­nity leave from 28 days to eight weeks; and in­tro­duc­ing “keep­ing in touch days” where em­ploy­ers are able to re­turn to work for up to 10 days dur­ing the length of their ab­sence, with­out los­ing their statu­tory ben­e­fits.

Per­haps the big­gest change cur­rently in force is the re­moval of the small busi­ness ex­emp­tion. Pre­vi­ously, if an em­ployer had five work­ers or fewer, they would be ex­empted from a find­ing of au­to­matic un­fair dis­missal where they did not al­low an em­ployee re­turn­ing from ad­di­tional ma­ter­nity or adop­tion leave to come back to their old job, or a sim­i­lar one.

In April of this year, the sec­ond batch of ex­ten­sion and ex­pan­sions of work­place law will come into ef­fect. The main change is that the ex­ist­ing right to re­quest flexible work­ing ar­range­ments is ex­tended to ap­ply to more work­ers than just par­ents of chil­dren un­der six and par­ents of dis­abled chil­dren un­der 18. From April, the right will ap­ply not only to par­ents, but to all who have the care of an­other as their re­spon­si­bil­ity.

Flexible work­ing rights are prov­ing to be un­pop­u­lar with busi­nesses, ac­cord­ing to stud­ies con­ducted by the CBI. The ex­ten­sion of the right to more work­ers is not likely to in­crease its pop­u­lar­ity with busi­nesses. How­ever, this ex­ten­sion is not some­thing for em­ploy­ers to fear. The con­cept of flexible work­ing ar­range­ments should al­ready be familiar to many em­ploy­ers. In ad­di­tion, the new ex­tended ap­pli­ca­tion lacks bite, as em­ploy­ers are not re­quired to agree to any re­quest to work flex­i­bly and can only be pe­nalised in re­spect of any pro­ce­dural fail­ings. Even then, the max­i­mum penalty that an em­ployer would have to pay to their em­ployee is two weeks’ wages. How­ever, em­ploy­ers should con­sider the wider is­sues of sex and dis­abil­ity dis­crim­i­na­tion if they in­tend to turn down a re­quest to work flex­i­bly.

The fi­nal tranche of new laws do not yet have a date set for im­ple­men­ta­tion, though the gov­ern­ment has stated that it in­tends to in­crease the pe­riod of statu­tory ma­ter­nity pay to 52 weeks by the end of this par­lia­ment and, at the same time, in­tro­duce ad­di­tional pa­ter­nity leave for fa­thers.

While it can be ar­gued that the pro­vi­sions of the Work and Fam­i­lies Act are tilted in favour of the em­ployee, the leg­is­la­tion does very lit­tle that is new, and should not be a cause for alarm among em­ploy­ers.

Con­tent sup­plied by Sheila Gunn, a part­ner spe­cial­is­ing in em­ploy­ment law with com­mer­cial law firm Shep­herd+ Wed­der­burn

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