Proposals to introduce new family friendly rights in the workplace and increased flexible working for all employers are now fully underway following the first reading of the Children and Families Bill on 4 February 2013.
In summary, the Bill proposes to:
• extend the right to request flexible working to all employees;
• replace the current strict statutory procedural requirements on employers dealing with an employee’s request with a ‘reasonableness’ test;
• introduce a new statutory Code of Practice explaining the meaning of ‘reasonable’ and to introduce guidance on how to prioritise conflicting requests;
• introduce shared parental leave for mothers and fathers, allowing both parents to share the current maternity leave period from as soon as two weeks after birth; and
• introduce a new right for fathers or the mother’s partner/husband to take unpaid time off work to attend up to two ante-natal appointments.
It is intended that by extending the right to all employees, rather than just parents and carers, better flexible working arrangements will be created and developed, allowing employers to retain key employees and increase productivity.
The main criticism of the proposals, however, is that by offering the right to request flexible working patters to all employees; some parents or carers, who are likely to be most in need of flexible working, may find it more difficult to agree suitable arrangements, particularly where employers receive competing requests. Dealing with competing requests could, therefore, become quite time consuming for employers. Employers may face other practical issues as longer opening hours may result in higher office running costs in terms of energy bills, accessing the employer’s offices and monitoring timekeeping.
The proposed ‘reasonableness’ test
The current statutory process for employers dealing with an employee’s application for flexible working can be very burdensome on employers and can result in claims being upheld for very minor procedural errors. For many employers a ‘reasonableness’ test will therefore be welcomed.
However, new problems will likely be encountered in determining what is to be considered as reasonable. The new statutory code will therefore be crucial; however, much will depend on how easy it is to determine whether refusal of a request is reasonable under this guidance.
Shared Parental Leave
These proposals will enable both parents to share the maternity leave period, after the first two weeks which will remain as compulsory for the mother to take. In many cases, this will make it easier for both parents to be more easily involved in the early stages of their child’s development and will be particularly relevant where the female is the higher earner. However, employers may face difficulties in finding appropriate cover for non-continuous periods where parents take alternative weeks or ‘blocks’ of leave and decisions reached between an employer and employee will also depend on the employee's partner and arrangements made with their employer.
The new proposals do offer new opportunities for employers and employees to reach agreements in relation to flexible working under a less stringent regime and this should help facilitate the retention of key employees in many cases. However, employers may well be faced with new challenges in relation to competing applications, associated costs of implementing a formal flexible working regime and interpreting the meaning of ‘reasonableness’ under the new proposed test in a way that avoids claims from unhappy employees whose requests are refused.
We will keep you updated as the Bill progresses but please let us know if you have any queries in the meantime.
0131 226 8220