Workers rights lack bite
Employers have little to fear from challenging, seemingly draconian new maternity rules
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