Media Briefing Note: Flexible Working Changes Confirmed

LONDON, 14 NOVEMBER 2012 - Despite the long delay in responding to the Modern Workplaces Consultation, the Government has confirmed that it will be pressing ahead with a system of flexible parental leave from 2015.

Jo Broadbent, Of Counsel at law firm Hogan Lovells, commented: "One significant change under the new system will be the ability to take parental leave in blocks of just a week, in contrast to the current position where maternity leave must be taken as a single period. The Government accepts that this may create challenges for employers in arranging cover for employees on parental leave, so the default position will be that leave must be taken in a single continuous block, unless the employer agrees to leave being taken on a more flexible basis.

"This additional flexibility will be attractive to both employees and employers. Employers may benefit from the fact that employees can return to work for periods of time during their parental leave, but retain the option of requiring the leave to be taken in a single period. Employees will have an opportunity to take leave in the way that suits their individual requirements and remain in touch with the workplace to a greater extent than is possible under the current system."

Offering parental leave on an equal basis

"The proposals may have the benefit of making it much clearer for employers to decide what terms and conditions, including pay, to extend to individuals on parental leave.  At the moment there is some uncertainty about whether a man taking a period of additional paternity leave (APL) could compare his treatment with that afforded to a female colleague taking a period of additional maternity leave (AML).  If such a comparison is permissible, it would be possible for the man on APL to argue that he should be entitled to the enhanced pay or other benefits, such as return to work bonuses, which are made available to the woman on AML. 

"Now that both parents will be able to take flexible parental leave, it should be clearer that as long as a man and a woman on parental leave receive the same treatment, there is no prospect of a successful discrimination claim."

Prioritisation of multiple flexible working requests

"The Government has confirmed that the right to request flexible working will be extended to all employees, so a real concern for employers will be how to prioritise competing requests.  In practice, difficulties are particularly likely to arise once a number of employees are employed on flexible working patterns, making it more difficult to agree to subsequent requests. 

"An employer's main concern when faced with a flexible working request in those circumstances is likely to be the risk of an indirect discrimination claim from an employee whose request to work flexibly for childcare reasons for example is refused.  Employers (and employees) will benefit from guidance that has been promised from ACAS about how the extension of the right to request flexible working to all employees interacts with an employer's duty not to indirectly discriminate."


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