Elizabeth Maxwell, Solicitor in our Employment team has reviewed some of the headline hitting developments in family friendly rights over the past few months, below are some important changes you should look out for.
The Court of Appeal says it is lawful to enhance maternity pay whilst paying men on shared parental leave the statutory minimum.
Men taking shared parental leave cannot be compared to women on maternity leave, ruled the Court of Appeal in the joint appeals of Ali v Capita Customer Management Limited and Hextall v Chief Constable of Leicestershire Police.
The Judges ruled that the purpose of maternity leave was more than just childcare, it was to recover from pregnancy and childbirth, an experience that cannot be shared by fathers. Therefore it is not discriminatory to offer those on maternity leave a more generous financial package. This seems a backward step given that SPL was introduced to create a more level playing field by encouraging men to take family leave and the evidence is that (as presented to the Women & Equalities Select Committee) UK enhanced parental pay leads to a higher take up of leave.
What is happening about parental bereavement leave?
Further to the Parental Bereavement (Leave and Pay) Act 2018, we understand the Government intends to submit regulations on the details of the scheme by the end of 2019, with the new rights in force from April 2020. These will give all employed primary carers a day one right to 2 weeks’ paid leave if they lose a child under the age of 18, or suffer a stillbirth from 24 weeks of pregnancy.
Eligible employees will be able to take either one or two week’s consecutive leave within 56 weeks from the child’s death. Employees with 26 weeks’ continuous service will receive paid leave at the statutory rate. Notice requirements will be flexible so leave can be taken without prior notice.
Proposals for greater redundancy protection for women before and after maternity leave, kicked into the long grass
At present, in a redundancy situation, women on maternity leave must be offered available suitable alternative employment. A 2016 Government report into discrimination towards new and expectant mothers found that 77% of the women interviewed faced a negative or discriminatory experience during pregnancy or after their child was born.
Following a period of consultation and calls from the Women and Equalities Select Committee and others to implement reforms as soon as possible, the Government has decided to expand the redundancy protection period so that it begins when the employee tells her employer she is pregnant and ends six months after maternity leave. However the Government has also said it will only implement this change in the law ‘when parliamentary time allows’.
New Government proposals to support families
In July, as part of its Good Work Plan, the Government issued a major (75 page) consultation document inviting comments on:
- ‘High level options’ around the length and pay entitlement of statutory paternity leave and shared parental leave, to increase take up by male employees and for which the consultation period ends 29 November 2019.
- The introduction of a new day one right to Neonatal Leave and Pay for employees with primary care responsibility, for a fixed number of weeks following the first two weeks of the child’s hospital stay.
- Improved transparency of employers’ flexible working and parental leave and pay policies so they are available to existing employees and job applicants who can then make informed decisions about job opportunities. Larger employers may be required to publish this information on their websites. The consultation period for these proposals and on Neonatal Leave and Pay, ends 11 October 2019.
For further advice on this ruling, including on what amounts to working time, or any other employment law query contact your usual adviser in the employment team or Elizabeth Maxwell at [email protected] or by phone on 01737 854501.