Dr Anne Sammon on parents’ rights in the workplace

Blog

Dr Anne Sammon has recently completed a PhD considering parental rights in the workplace (UK)*. This has given Anne some fascinating insights into the law, practices and procedures which employers might not be immediately aware of. In this series of articles, Anne will share her unique perspective on some of the practical learning for employers – not the technical legal issues but, rather, what proactive employers can and should be doing to future-proof their policies and procedures and make sure that they are fit for “an employer of choice”.

In each article Anne will consider an interesting practical angle, keeping the message short and to the point.

(*Examining the adequacy of the existing UK parental rights regime in the workplace)


31 January 2017


What can we expect in 2017 on parental workplace rights?

Dr Anne Sammon outlines the changes that we can expect in 2017.

Although we are still only at the start of 2017, there are indications that parental workplace rights will once again be on the legislative agenda with the long awaited consultation on Shared Parental Leave for Grandparents still to be published and a renewed focus on pregnancy discrimination.

Shared Parental Leave for Grandparents

This consultation was expected in summer of 2016, but with Brexit assuming the attention of the legislature, it never materialised. The Government had indicated that it wanted to introduce legislation on this to take effect from 2018, which would mean that the consultation is likely to now take place in 2017. There is nothing immediate for employers to do on this and in the intervening period, it is likely that grandparents that have caring responsibilities for their grandchildren will continue to rely on the rights to holiday and flexible working to assist them in accommodating these responsibilities in the workplace.

Pregnancy discrimination

The Government has promised a consultation on how to prevent women from losing their jobs when they are pregnant or become new mothers. This follows the publication of the results of an Equality and Human Rights Commission investigation into pregnancy discrimination and disadvantage in the workplace, which found that 11% of mothers lost their jobs as a result of their parental or pregnancy status.

Employers are likely to find that there is greater attention on the treatment of pregnant workers. As such, they should consider whether the policies that they have in place already remain fit for purpose, but also should consider how these policies translate in practice and whether there is any risk of unfavourable treatment of pregnant workers occurring in their workplaces.

Areas that often cause difficulties for employers include:

Previous issues of Anne’s thoughts are available below.

If you have any questions in relation to this article or have a particular issue that you would like Anne to address in a future edition, please email anne.sammon@simmons-simmons.com 

Expand all
29 March 2016

The interaction between Gender Pay Gap Reporting and Family-Friendly Policies

Anne Sammon considers the likely impact on family friendly policies with the government’s anticipated plans for mandatory gender pay gap reporting.

The Gender Pay Gap Regulations

It is anticipated that new regulations on a mandatory duty to report on gender pay gap data will come into force on 01 October 2016, with the first reports due to be published using data from April 2017. Whilst the legislation is yet to be finalised, it is clear that it will apply to all employers with at least 250 employees and that they will be required to publish the relevant information on an annual basis. As well as providing data, employers will be able to provide a narrative explaining the reasons for any gender pay gap and measures that have been taken to address this.

How are Family-Friendly Policies relevant to the Gender Pay Gap

There is a substantial body of research on the gender pay gap that suggests that one of the reasons for the disparity in pay between men and women is what is often referred to as the “motherhood penalty”. This occurs after women have taken time off for maternity leave and continues thereafter throughout their careers and not simply during their child-rearing years. Research attributes the “motherhood penalty” to a variety of factors including: a lack of part-time work available at senior levels, leading to women opting to remain in more junior roles or even in some cases relinquishing senior roles to become more junior; larger numbers of women than men exercising their rights to family-friendly rights, such as parental leave, emergency dependant’s leave and flexible working; and a (perceived) inability to combine more senior roles with active participation in parenting responsibilities.

Appropriately drafted family-friendly policies can help to address the issues identified above. In the context of gender pay gap reporting, they are also likely to be very helpful in demonstrating that an employer has taken reasonable steps to address the “motherhood penalty”, which is a root cause of the gender pay gap. By way of an example, one of the obligations under the gender pay gap reporting duty will be to report the numbers of men and women in each of four salary quartiles. This will highlight those employers where there are low numbers of women earning high salaries. If, as an employer, you have a low number of women in the highest salary quartile, but you can provide a narrative that you have taken steps to address this (for example, by having an effective flexible working policy that allows everyone, irrespective of seniority, the opportunity to work flexibly, subject to the requirements of their roles), this is likely to be viewed more favourably than if no steps have been taken to address the issue. A recent report by the Fawcett Society (Parents, work and care: striking the balance) recommends that fathers (and other second carers) should be given paid leave to encourage their more equal participation in relation to childcare.

What should employers be doing now in relation to family-friendly policies?

The duty to report on gender pay gap data will only relate to data from April 2017, with an obligation to publish the data within 12 months of this date. However, if employers want to provide a narrative arguing that they have taken such steps to address any gender pay gap and have implemented a package of measures designed to reduce or eliminate the “motherhood penalty”, any policies that they seek to rely on would, ideally, be in force in advance of April 2017.

Employers may also want to consider whether there are other initiatives, such as providing on-site crèche facilities, extending periods of paid leave and offering emergency childcare, might make a difference to any gender pay gap issues specific to their organisation. Incorporating such measures into a more holistic approach to family-friendly issues is more likely to effect change than paper policies alone.

Given the raft of changes to family-friendly legislation in recent years, including the introduction of Shared Parental Leave, now would be a good time for employers to consider whether their current policies, when taken as a whole, achieve the organisation’s desired objectives, including those that relate to the gender pay gap.

Previous issues of Anne’s thoughts are available below.

If you have any questions in relation to this article or have a particular issue that you would like Anne to address in a future edition, please email anne.sammon@simmons-simmons.com

22 March 2016

Do you have to continue to provide Childcare Vouchers during Maternity Leave?

Anne Sammon considers the important issues employers should be aware of when dealing with the provision of Childcare Vouchers during Maternity Leave.

There has always been debate about whether an employer is required to continue to provide childcare vouchers during periods of statutory maternity pay (“SMP”) and the unpaid portion of maternity leave. The Employment Appeal Tribunal considered this issue in the recent case of Peninsula Business Services v Donaldson.

The issue of “remuneration”

Whether an employer needs to provide childcare vouchers during maternity leave depends on whether these are deemed to be remuneration or not. This is because the legislation on maternity rights (the Maternity and Parental Leave Regulations 1999) provides that an employee on maternity leave must continue to receive the same terms and conditions as they did prior to the leave, except for those that relate to remuneration. The definition in that legislation of “remuneration” is open to interpretation and historically many employers have relied on HMRC guidance that provides that contractual non-case benefits provided under a salary sacrifice scheme (which would include childcare vouchers provided in this way) must be provided during maternity leave. Similar advice was also issued by the former Department of Business, Enterprise and Regulatory Reform.

Peninsula Business Services v Donaldson

In this case, the Claimant alleged that a term of her employer’s childcare voucher scheme, under which employees had to agree that during maternity leave, the employee’s right to vouchers would be suspended, was discriminatory. Surprisingly, and in spite of the HMRC guidance on this point, the EAT held that it was not.

The Claimant was, unfortunately, unrepresented and therefore there are a number of runnable arguments that do not appear to have been presented as part of her claim. In particular, the way in which the EAT characterised a salary sacrifice scheme, as being a diversion of funds, rather than the employee truly sacrificing her salary, might be open to challenge.

Should employers be changing their childcare vouchers schemes?

Those employers that already suspend childcare vouchers during maternity leave may take some comfort from the decision in Peninsula Business Services v Donaldson. However, the EAT heavily caveated its decision on the basis that the Claimant was unrepresented and they were therefore concerned that all the relevant evidence and legislation might not have been put before them.

Where employers continue to provide childcare vouchers during maternity leave (including periods where SMP is paid and the unpaid portion of leave), there is nothing in the decision Peninsula Business Services v Donaldson that means that this practice needs to change. Given the uncertainty around whether the EAT’s decision could be subject to challenge, employers would be sensible not to rely solely on the outcome of this case when deciding whether to make any amendments to their existing schemes.

Previous issues of Anne’s thoughts are available below.

If you have any questions in relation to this article or have a particular issue that you would like Anne to address in a future edition, please email anne.sammon@simmons-simmons.com

16 November 2015

Breastfeeding in the workplace

Anne Sammon considers the important issues employers should be aware of when dealing with requests for breastfeeding in the workplace.

With the question of whether MP’s should be able to breastfeed in the House of Commons in the papers, employers may be wondering what rights employees have in this regard.

Whilst the Equality Act 2010 provides that women have the right to breastfeed in a public place. This would include shops, restaurants, hotels, hospitals and other public buildings, but will not cover the majority of private workplaces.

There is, therefore, no absolute right for most employees to be able to breastfeed in their workplace, however there are two legal issues that employers should be aware of:

(1) The Equality Act 2010 provides that it is unlawful to treat a woman less favourably because she is breastfeeding, and

(2) Health and Safety legislation: as set out below, employees may use this to frame an argument that they have a right to breastfeed, but in addition, employers need to consider whether they need to take any particular steps to protect the health and safety of a breastfeeding mother.

Health and Safety arguments

There has been a suggestion that an employee could run the argument that, as breastfeeding for the first 12 months of a baby’s life has been shown to have positive benefits for the health of both the mother and her child, an employer who refuses to allow a woman to breastfeed is therefore putting the health of that employee and her child at risk. Such an argument is untested in the courts, however, given the focus on these types of issues, it is likely that a straight refusal to allow a woman to breastfeed (or to express milk) could attract both a legal challenge and adverse publicity.

How should employers deal with requests?

First of all, it is important to note that very few employees make this type of request. The majority of mothers in the UK have stopped breastfeeding exclusively by four months (a UNICEF study showed that the rate was around 12% at four months and had fallen to 1% by six months).

Where a request is made, the employer should consider it carefully and only refuse it where there is a proper basis for this. By way of example, if an employee in a normal office environment were to request to be able to take breaks every four hours to express milk, it would be difficult to see how it would be reasonable to object to this. If the employee requested that her partner bring in her baby in an environment where there is confidential information being discussed, which the partner might have access to by virtue of him being in the office, then an employer might be able to justify a denial of this request.

Ideally, the employer should meet with the employee to explain the rationale for any refusal and to see whether it would be possible to reach a compromise. (In the above example, it might be that feeding would take place in part of the office where confidential information is not accessible).

All decisions should be properly documented and, if in doubt whether a reason might be discriminatory, legal advice on the specific circumstances should be taken to avoid creating disclosable documents that might be unhelpful in defending a discrimination claim.

Previous issues of Anne’s thoughts are available below.

If you have any questions in relation to this article or have a particular issue that you would like Anne to address in a future edition, please email anne.sammon@simmons-simmons.com.

05 October 2015

Shared Parental Leave for Grandparents - what is the likely impact for employers?

Anne Sammon considers the likely impact for employers on the government’s plans for extending SPL to grandparents.

George Osborne has announced plans to extend Shared Parental Leave (“SPL”) to grandparents by 2018. According to some research two million grandparents, which is about 5% of the working population, have given up their jobs or reduced their hours in order to care for their grandchildren. As such, these proposals, if they affected all such grandparents, could have a significant impact on employers. At the moment there is limited detail about the proposals, but how concerned should employers be about the likely impact?

Likely numbers

At the moment, there is no official estimate of how many people the extension of SPL to grandparents is likely to affect. However, it is likely to be significantly less than two million. This is because SPL can only be taken during the first year of a child’s life. In addition, it is unlikely to assist those grandparents who, rather than giving up work for a short period of time, wish to reduce their hours. According to research produced for the Department of Education in 2011, the majority of grandparents provide less than 10 hours’ childcare per week. For those grandparents, the existing ability to be able to request flexible working is likely to be of most assistance.

What should employers be doing now?

In short, at the moment, there is nothing for employers to do at the moment. This policy is only in its very early stages and consultation on the detail is not expected until the first half of 2016.

What rights do grandparents have in the workplace?

Currently, there are no specific employment rights targeted at grandparents. However, as mentioned above, the right to request flexible working may be of help to those grandparents who wish to reduce their hours to care for grandchildren. Such requests should be properly considered by employers, in accordance with the statutory framework.

Similarly, employers should avoid discrimination against grandparents, who may be able to bring claims on the basis of associative discrimination or indirect discrimination (if they can show that people of their sex/age are likely to be disadvantaged by an employer’s policy).

17 August 2015

Antenatal appointments – how to avoid getting it wrong

Anne Sammon considers the important points for employers to note when dealing with requests for time off for antenatal care.

The Equality and Human Rights Commission ("EHRC") has published a report on the prevalence and nature of pregnancy discrimination and disadvantage in the workplace. One of the findings of this report was that 10% of mothers interviewed by the EHRC for the report said their employer had discouraged them from attending antenatal appointments.

The right to attend antenatal appointments - mothers

Pregnant employees and agency workers are entitled to paid time off to receive antenatal care. Where an employer unreasonably refuses to allow the employee/agency worker to take this time off, the employee/agency worker may bring an employment tribunal claim. In addition, if time off is refused or there is any detriment arising from the employee/agency worker having exercised the right to time off, this is likely to amount to unlawful pregnancy discrimination. So, how should employers deal with requests for time off for antenatal care?

There is no definition of the term "antenatal care". Medical appointments clearly fall within scope, however it is less clear whether, for example, antenatal classes would fall within this. BIS guidance suggests that these would where they are recommended by a healthcare professional. Whilst there have been some first instance decisions where parent craft classes have been held not to be covered by the legislation even where the employee's attendance at the class was recommended by her midwife, there would seem to be some risk attached to this approach - particularly if such classes take place towards the end of the working day (as they often do) and therefore involve only minor disruption to the employee's working day.

There is also no guidance on when it might be reasonable to refuse to allow an employee/agency worker to attend an appointment for antenatal care. This is likely to depend on the nature of the appointment, the duration of the appointment and the disruption caused to the employer, as well as how much notice of the appointment the employer has been given. An employment tribunal would seem to be likely to be more sympathetic to an employer that refuses to allow an employee to attend a parent craft class lasting a couple of hours in the middle of the working day, than to an employer that refuses to allow an employee attending an anomaly scan lasting the same duration.

How can employers avoid getting it wrong?

Communication is a key aspect to avoiding issues with antenatal appointments. Having a conversation at the beginning of the employee’s pregnancy to explain what is expected in relation to antenatal appointments will help to avoid issues later on.

This conversation might include:

  • whom the employee has to notify if she is going to attend an appointment
  • whether the employee has to record the absence in any particular way
  • how much notice should be given of the appointment (where possible)

As a minimum though, the conversation should confirm that the employee is able to take a reasonable amount of time off for these appointments and that she will not be subject to any detriment as a result.

Often the types of discussions described above take place between managers and employees, rather than directly with HR. As such, it is important that all managers are aware of the right to take time off for antenatal appointments.

06 July 2015

Reasonable contact

Anne Sammon considers the level of contact you should have with an employee on maternity, paternity or shared parental leave.

The legislation on maternity, paternity and shared parental leave refers to an employer being entitled to have “reasonable contact” with an employee who is on such leave; but how much contact can and should you have with an employee in these circumstances?

When you can make contact

There is no definition in the legislation of “reasonable contact”. However the aim of including a reference to this in the legislation was to help to make the employee’s return to work after leave easier by ensuring that the employee continues to feel part of the employer’s workforce. As such, the idea is not that the employer can ask the employee to carry out work during the leave (this is the purpose of Keeping in Touch/Shared Parental Leave in Touch days). Typically contact should be to update the employee on developments in the workplace, such as staff changes.

To avoid any disputes about whether any contact was “reasonable” it is advisable for the employer to have a discussion with the employee about what level of contact the employee wants to have during leave and the best way to contact him/her.

What goes wrong

Litigation and grievances can stem from either too much or too little contact, and often what one employee on leave may feel is an appropriate level of contact will be different from another employee’s view of this. This is why it is important for employers to have discussions with employees about to go on leave to establish what is appropriate for that particular employee.

Compulsory Maternity Leave: an exception to the rule?

The legislation does not define the term “reasonable contact”, so it does not specify that there can (or cannot) be contact with an employee during the compulsory maternity leave period. However, employers should be very careful about the level of contact that they have during this period and whether, in fact, they are requiring, asking or even just permitting, the employee to work during this period. If an employee is asked to work during this period, not only is there a risk of a claim from the employee (which might be brought as an uncapped discrimination claim) but also the employer will be guilty of a criminal offence. Employers should be aware that they commit a criminal offence simply by permitting an employee on compulsory maternity leave to work and, as such, it should be made clear to all employees about to commence maternity leave that they are not expected, and should not, work at all during the compulsory maternity leave period.

12 May 2015

The right to return to the same job after family leave

Anne Sammon considers the exposure an employer may have if an employee returns to a role that is significantly different.

Occasionally when an employee has been out on maternity/paternity/parental/shared parental leave, there may have been such significant changes to the way in which the business works that the job that s/he returns to might be significantly different. In these circumstances, what exposure does an employer have?

Is there a redundancy?

If there has been a decrease in the need for work of the particular kind carried out by the employee, then this would amount to a redundancy situation. In these circumstances, the employer should consider the steps that it needs to follow as regards consultation and the obligation to find suitable alternative employment at the time the redundancy situation arises, and not simply on the employee’s return.

No redundancy, but change in the role

The legislation provides for two different rights to return, depending on how much leave an employee has taken: (i) the right to return to the same job and (ii) the right to return to the same job unless it is not reasonably practicable to allow the employee to do so, in which case the employee has the right to return to a suitable alternative role.

In essence, where an employee has taken 26 weeks or less leave (whether this is as maternity/paternity/shared parental leave), the employee will have the more favourable right to return and where an employee has taken more than 26 weeks’ leave, the employee has the less favourable right to return. Parental leave is treated slightly differently so that if an employee takes more than 4 weeks’ leave, s/he will have the less favourable right to return (with anything less than this entitling the employee to the more favourable right).

In the event that an employee does not comply with the relevant right to return, the employee will be able to bring a claim for automatic unfair dismissal. In addition, the employee may try to run a discrimination argument, depending on the facts of the case.

However, employers should be aware that the definition of “same job” may be relatively wide and, thus, making changes to an employee’s role may not necessarily mean that the employee’s job is no longer the same. Given the fact specific nature of the question, each case needs to be considered on its own individual circumstances to determine whether the “job” is genuinely different or essentially the same. However, there are a couple of factors that are likely to point towards a role being a different job: 

  • Status – if the status of the employee within the organisation is lowered, this is likely to mean that an Employment Tribunal will consider that the role that the employee is returning to is not the “same job”. As such, employers should be particularly careful if the employee’s role is re-graded.
  • Remuneration – if the employee’s remuneration is reduced, this is likely to mean that the role is not considered to be the “same job”.
24 March 2015

Relationship breakdown: a difficult issue

As awareness of Shared Parental Leave (“SPL”) increases, HR professionals are beginning to think through various practical scenarios which may arise in order to test their policies and internal processes for dealing with SPL. One of those which is beginning to cause concern is the issue of relationship breakdown and how this might impact an employee who is eligible for SPL or who is on SPL at the relevant time.

There are two different scenarios. The first is that the employee is on SPL at the time of the relationship breakdown and ceases to live with the primary carer of the child (whilst this is most likely to be the mother, employers should be careful not to make this assumption when dealing with this or any similar scenario) and is no longer responsible for caring for the child. In these circumstances, under the SPL legislation, the employer does not have to allow the employee to immediately return to work; if it is not reasonably practicable to do so, the employer can postpone the employee’s return for up to eight weeks (which is the same amount of notice required to vary SPL in any event). The key question will be whether or not it is reasonably practicable to allow the employee to return.

Unfortunately there is no guidance on when it might be considered that it is not reasonably practicable to allow an employee’s early return to work. One factor that is likely to be relevant in this consideration relates to the nature of the cover for the employee on SPL. If a temporary replacement has been hired for a fixed-term and that contract is only terminable on notice, this may suggest that it is not reasonably practicable to allow the employee on SPL to return until the expiry of that notice. However, in a large organisation, employers may also be expected to consider whether it is possible to move the temporary replacement to another open role within the organisation – this is likely to depend on the nature of the role and the business’ needs.

In terms of practical pointers for employers, it is worth bearing in mind that any employee on SPL can elect to return earlier than they had originally planned by giving eight weeks’ notice. As such, where possible, if employers are hiring temporary replacement cover for such employees, they should ensure that contractually they are permitted to terminate the temporary arrangement on eight weeks’ notice or less.

The second scenario is that the employee is working, with their co-parent on SPL at the time that the relationship breakdown occurs and the co-parent on SPL chooses not to (or is unable to) continue to care for the child. The legislation appears to have given no consideration to this scenario. Under the legislation, the employee in question would need to give eight weeks’ notice in order to start a period of SPL.

Practically this may be very difficult for the employee and, in these circumstances, employers may wish to think about whether it might be appropriate to allow the employee to take some other form of leave before the employee’s SPL period commences. It may be that in these circumstances, the employee would have the right to time off to emergency dependants’ leave, as there would be an unexpected disruption in the arrangements for care of the child. Although an employee is only entitled to take a reasonable amount of time off where it is necessary for this purpose, it may be the case that if the child is particularly young, no alternative childcare is available.

There is no need for employers to deal with the above situations in their SPL policies, however, HR professionals should be aware of them and employers may wish to consider, in advance of an issue arising, how practically they might wish to approach these difficult issues.

11 March 2015

Forthcoming changes to adoption leave

Anne Sammon considers the number of changes to adoption leave coming into effect after 05 April 2015.

There are a number of changes to adoption leave that come into effect for children placed on or after 05 April 2015. Employers need to be aware of these and to consider how they impact their existing practices and policies.

No service requirement for adoption leave

Currently, unlike maternity leave, there is a continuous service requirement for employees wishing to take adoption leave (26 weeks’ continuous service at the week in which they are informed that they have been matched with a child). This is abolished for children placed on or after 05 April 2015.

Surrogacy and adoption leave

Those who become parents through a surrogacy arrangement are currently often excluded from the right to adoption leave through the current qualifying requirements. This is because there is a requirement for the employee to have received a matching certificate from the UK adoption agency that has placed the child with the parent and in surrogacy cases often this does not happen. The rules relating to this are changing for children who are due to be born to a surrogate on or after 05 April 2015.

A parent of these children will be eligible for adoption leave where:

  • the parent is an employee 
  • the parent, at the date of the child’s birth, has applied or intends to apply within six months, for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 and has been granted, or expects to be granted, such an order.

Fostering for adoption

Fostering for adoption is a new scheme which will allow children to be placed with foster parents who are also prospective adopters. Where an employee falls within this scheme, a child will be considered as being placed for adoption on the date that the child is placed with the employee (that is, during the fostering period). This will then trigger the employee’s ability to take adoption leave.

What should employers be doing now?

Employers should review their adoption policies to ensure that they reflect the above changes.

24 February 2015

Shared Parental Leave – queries from employees

Employers are beginning to receive enquiries from their employers about how Shared Parental Leave will work; some of these are throwing up some interesting issues. This article considers some of the questions that employees are beginning to ask.

Question: my due date is 04 April 2015 - am I eligible for shared parental leave if my child is actually born on 05 April 2015?

The short answer is no. The legislation on SPL provides that it applies for those whose expected week of childbirth is on or after 05 April 2015. As such, the key date is the expected date, rather than the actual date. This also means that if an employee’s baby is due on 05 April 2015 but is actually born before this, the employee will still be eligible for SPL.

For employers, this may cause some tension between employees – it is possible that two colleagues whose babies arrive on the same date will be in very different positions as regards their entitlements to leave. This may be even more pronounced for fathers in organisations that offer enhanced payments for SPL but not for Additional Paternity Leave (which, other than Ordinary Paternity Leave, is all that a father whose baby is expected before 05 April 2015 will be entitled to).

Question: if I take maternity leave and use my 10 KIT days entitlement, will I still be entitled to 20 SPLIT days, irrespective of how much SPL I take?

The number of SPLIT days that an employee can take is not reduced by the number of KIT days that that employee has already used. As such, if an employee chooses to take a period of maternity leave, following by SPL, the employee will be eligible for 10 KIT days and 20 SPLIT days. It is important to explain to employees that there is no entitlement to use a KIT or SPLIT day; the days have to be agreed by both the employer and the employee.

Question: why is the number of SPLIT days greater than the number of KIT days?

It is not clear why the number of SPLIT days in 20 but the number of KIT days is only 10. It is likely that this is because SPL is designed to allow families to have maximum flexibility over how to arrange their working arrangements during the first year of a new child’s life. The explanatory memorandum to the legislation suggests that SPLIT days could be used in order facilitate shared parental leave to be taken on a part-time basis or to allow a phased return to work.

Question: I do not understand the difference between some of the eligibility requirements; the legislation says that I have to satisfy the continuity of employment test and be entitled to statutory maternity leave, but aren’t all women entitled to statutory maternity leave irrespective of length of service?

The continuity of employment test requires that the employee has 26 weeks’ service at the end of the 15th week before the expected week of childbirth and that s/he is still in employment when the leave begins.

There is no service requirement for a woman to be eligible for maternity leave, but there are some notification requirements that have to be complied with. The employee must have notified the employer of her pregnancy at least 21 days before the start of the maternity leave and has to provide evidence of this if requested.

20 January 2015

Are parents with sick children entitled to time off to look after them?

Anne Sammon outlines the rights that parents have to look after sick children.

With the flu-season in full swing and the usual cold viruses circulating, January is often a time when parents find themselves with a sick child. Some employees may assert that they have a right to time off in these circumstances, but what rights do they actually have?

Emergency Dependant’s Leave (“EDL”)

EDL is available for certain specific situations. In respect of the care of a sick child, the most applicable ground would be that there has been an unexpected disruption in childcare, for example because the child’s school or nursery has excluded them whilst they are ill. This is designed, not to enable the parent themselves to care for the child, but for them to put in place other childcare arrangements. However, in practice, parents may find it impossible to find other childcare provision that will look after a sick child, particularly where the child is suffering from a contagious or infectious condition, such as chickenpox. In these circumstances, as there is no limit in the legislation specifying the maximum period of time that can be taken as EDL there is a significant risk that any detriment suffered by the employee as a result of taking time off would be actionable.

Emergency Childcare Provisions

Many employers will offer access to emergency childcare. Where an employer does so, can it require an employee to use this rather than taking EDL? Employees are only entitled to use EDL where it is necessary to take time off to deal with an unexpected disruption in Childcare arrangements. Some might argue that where there is an alternative arrangement, such as emergency childcare provision, it is not “necessary” for the employee to also take time off. The difficulty with this approach is that it may not be unreasonable for the parent to, for example, want to meet the person (such as a nanny) who will be looking after their children. Given this, there is a significant risk that refusing leave in these circumstances would be contrary to the legislation and could result in a claim by the employee.

Working from home

Some employees may seek to work from home, rather than taking a day’s EDL. There is no requirement for employers to allow this. As such, it is likely to be dependent on the individual circumstances of each case whether it is appropriate to allow an employee to work from home whilst also caring for a sick child.

06 January 2015

Flexible working: how do you minimise the risks associated with rejecting a flexible working request?

Following on from the last article, this article considers the various practical steps that an employer can take in order to minimise the risks associated with the rejection of a flexible working request.

  • Consider the request before meeting with the employee

Being prepared for the first meeting with an employee to discuss a flexible working request is vital. This preparation should include identifying any potential barriers to the proposed arrangement and considering how these might be overcome. No final decision to refuse the request should be made at this stage as it is important to take into account any points that the employee raises in the meeting before reaching a final decision. 

  • Set the right tone at the meeting

You should be ready to explain the potential problems with the employee’s request but also to listen and properly consider any solutions that they suggest to overcome these. If the employee feels that there is a genuine reason why their preferred working pattern cannot be accommodated, they are less likely to bring a claim if it is later refused. Equally, you should be prepared to offer potential compromises – if the employee wants to work three days per week and this won’t work for the business, could you offer a four day working week instead? 

  • Ensure that communications are clear and that reasons are given

The legislation just requires that an employer communicates the outcome of the decision and, if that is that the request is rejected, states which of the permitted grounds applies. However, ideally in the outcome letter you should explain what the problems with the employee’s request were and why it was not possible to overcome these. This will enable the employee to understand the decision and may reduce the risk of a claim, so long as they buy into the rationale. Where any alternative has been proposed by the employer, it is helpful for the outcome letter to include a reference to this. 

  • Ensure that the request is dealt with promptly

As the legislation no longer contains a particular process that must be followed in relation to considering any flexible working request, there is a risk that employers allow delay to creep into the process for considering requests. This should be avoided – as well as the three month overall limit in the flexible working process, any unexplained and unreasonable delay may be looked at unfavourably by a Tribunal. In addition, it is likely to cause frustrations for the employee involved, which may mean that they are more inclined to consider raising a grievance or possibly bringing a claim. 

  • Use trial periods appropriately

There can be a temptation to use a trial period as a way to demonstrate to an employee that their particular requested working pattern is not feasible in the hope that the employee might more readily then accept a refusal of that request on a more permanent basis. The danger with this approach is that it fails to manage the employee’s expectations. The employee may make arrangements based on their flexible working pattern and may then find it difficult to unravel these if the employer subsequently finds that the pattern is not appropriate. By way of example, if an employee requests to work three days per week and finds a nursery place on that basis, it may not be possible for them to immediately then find a full-time nursery place; in these circumstances, telling the employee that they must return to full-time work at the end of the trial period (when it may be impossible for them to find childcare within that time) is likely to result in the employee feeling unreasonably treated, which may in turn result in a claim.

17 December 2014

Flexible working – what are the risks when you refuse a request?

All employers are likely to find instances where a particular flexible working pattern proposed by an employee is not practicable. This two-part series of articles considers the factors that employers should consider in evaluating such working patterns and suggests some ways to mitigate the risks associated with refusing a request for flexible working.

Claims under the right to request flexible working regime

Under the right to request legislation, an employee can bring a claim where

  • The employer failed to deal with their application in a reasonable manner
  • The employer failed to notify them of the decision on their application within the decision period (usually three months unless an extension is agreed between the employer and employee)
  • The employer rejected the application for a reason other than one of the statutory grounds;
  • The employer’s decision to reject the application was based on incorrect facts, or
  • The employer treated the application as withdrawn but neither of the grounds entitling the employer to do so (essentially that the employee failed to attend two consecutive meetings to discuss the request or an appeal relating to the request).

However, even if successful, the maximum compensation for such claims is just eight weeks pay.

Discrimination claims

A far more valuable claim for the employee can be brought on the grounds of sex discrimination; usually on the basis of an indirect discrimination claim. Compensation for such claims is uncapped although, other than the injury to feelings element (which is effectively capped at £33,000), it is based on the loss suffered by the employee. An indirect sex discrimination claim can be brought even where the employer has complied with the legislation on the right to request flexible working. This type of claim tends to focus on the reason for the refusal and whether the employer can demonstrate that there is a genuine need to refuse the request. A direct sex discrimination claim is also possible where an employee can point to differences in treatment of requests depending in whether these were made by men or women.

As well as sex discrimination claims, now that the right to request flexible working has been extended to all employees, rather than just parents and carers, there is also the possibility of discrimination claims on other grounds, such as age or disability, where an employee’s request for flexible working is refused.

Unfair dismissal claims

There may also be circumstances where an employee feels that their request has been dealt with so badly that it amounts to a fundamental breach of duty of trust and confidence. These claims would tend to be combined with a discrimination claim so as to overcome the unfair dismissal cap.

Previous issues of Anne’s thoughts are available below.

02 December 2014

Redundancy whilst an employee is on maternity leave

A redundancy situation arising whilst an employee is on maternity leave is most HR’s departments worst nightmare. Often it seems that whatever you do, it is the wrong – if you make the employee on maternity leave redundant, you may face a discrimination or unfair dismissal claim, if, like the employer in Eversheds v de Belin, you treat the employee on maternity leave too favourably, you may equally face a discrimination claim from her male colleagues. So, what should you do in these circumstances?

  1. As with every redundancy selection exercise, consider the pool. Does it appropriately capture all the employees who are affected by the reduction in work? Do not exclude someone simply because she is on maternity leave – this would leave you open to risks of a claim from male colleagues who are in the pool and who are at risk of redundancy. 
  2. Consider your usual selection criteria (if you have any) – are any of these likely to place the employee on maternity leave at a disadvantage as a result of her maternity leave? If so, could you substitute this for a different criterion that will not place her at a disadvantage? Do not be inclined to over-compensate for the fact that the employee is out on maternity leave – giving her the highest score for a criterion that you feel might otherwise disadvantage her is likely to lead to complaints from her male colleagues (and a potential discrimination claim as occurred in Eversheds v de Belin
  3. Once you are happy that your selection criteria are fair, consider who should carry out the scoring exercise. Ideally this should be done by two or more people who have knowledge of those in the selection pool. 
  4. If your employee on maternity leave is selected as being at risk of redundancy, you need to remember that employees on maternity leave have an automatic right to be offered any suitable vacancies. This is an example of positive discrimination – but it is the only stage in the redundancy process where an employee on maternity leave can and should be treated more favourably than others.

The above applies not only to women on maternity leave but also to employees on ordinary adoption leave. Similar considerations will apply to those employees who take Shared Parental Leave (and these employees will also be entitled to be offered any suitable vacancies if they are at risk of redundancy). 

Eversheds v de Belin

Mr de Belin was placed in a redundancy pool with two colleagues, one of whom was a woman on maternity leave. The employer scored the three against five criteria, which included one which it was felt would potentially disadvantage an employee on maternity leave. As a result, it decided to award her the highest score for this particular criterion, two points, rather than assessing her performance against this. Mr de Belin received 0.5 points for this criterion. Overall Mr de Belin scored 27 points, whilst the employee on maternity leave scored 27.5 and Mr de Belin was selected for redundancy.  At the Employment Appeal Tribunal (EAT), Mr de Belin’s case that he had been discriminated against and unfairly dismissed was upheld. Whilst the EAT held that employees who are on maternity leave sometimes need to be treated more favourably than their colleagues to prevent unfair disadvantage as a result of pregnancy or childbirth, this was subject to employers only making such accommodations as were proportionate to alleviate such disadvantage. In this case, the employer could have used a less discriminatory means of removing the disadvantage suffered by the employee on maternity leave. Therefore, Mr de Belin had been discriminated against on the grounds of his sex when the employer decided to award the employee on maternity leave the maximum score for the relevant redundancy criterion. 

19 November 2014

EDL – abuse of the provisions

Following on from the last article, in which I set out when an employee might be eligible to take EDL, below I consider what employers should do if they believe that an employee is taking EDL in circumstances where they are not eligible to do so.

There are several different scenarios that can arise:

  • Employee taking too much leave

The legislation does not specify how much leave an employee can take as EDL, instead it just refers to employees being entitled to take a “reasonable” amount of time off. The circumstances of each case will dictate how much time is reasonable, but by way of guideline, it would be unusual for an employee to need more than three days’ EDL.

The legislation requires employees to tell their employer how long they expect to be away from work, unless it is not reasonably practicable to do so. To the extent that an employee informs a manager that they are intending taking a prolonged period of leave, it would be advisable for the manager to flag this with HR. HR can then speak with the employee to find out why it is necessary for the employee to take this amount of leave as EDL and potentially suggest other types of leave that are more appropriate in the circumstances.

  • Employee taking leave in circumstances where no entitlement

As set out in the last article, employees are only able to take EDL in certain circumstances. An employee taking leave for any reason other than these would have no entitlement to EDL and no protection if they were subjected to disciplinary action or any other detriment as a result of their unauthorised absence (subject to such action not amounting to unlawful discrimination).

The legislation provides that an employee must tell their employer the reason for their absence as soon as reasonably practicable. To the extent that an employee informs their employer that they are taking time off as “EDL” for any reason other than those set out in the legislation, the employer should inform the employee that they have no right to this time off and should consider what options to give the employee. These might be that the employee returns to work immediately or the employer could try to accommodate the need for time off through a different means (for example, through holiday or unpaid leave).

Prevention of abuse

Having a clear policy on EDL can help employees to understand when they are entitled to take leave (and when they are not). A policy should also specify the notification process that an employee must follow in order to take EDL – this will allow an employer to identify potential cases of abuse at an early stage and advise the employee that this is not a situation in which they can take EDL.

The policy should also state that abuse of the right to EDL and failing to follow the employer’s notification process can amount to a disciplinary offence and that action may be taken against the employee in these circumstances. The policy should be easily accessible and managers should ensure that they are familiar with it – so that they know when to flag with HR issues of potential abuse.

04 November 2014

EDL: when does an employee qualify for leave

Under s57A of the Employment Rights Act 1996, an employee has the right to unpaid time off work to deal with certain situations affecting dependants (often referred to as Emergency Dependant’s Leave or EDL) where this is necessary. Whilst the grounds on which an employee can take time off are fairly clear in the legislation, there are often examples of employees asserting that they have a right to time off when in fact they do not.

What is not covered by EDL
  • Providing personal care for a sick dependant, other than what is necessary to deal with an immediate crisis. So, for example, an employee is likely to be entitled to time off to look after a dependant who suddenly falls ill, but would not be entitled to several weeks’ leave in order to care for that dependant. (If the dependant was a child, the employee might be able to request parental leave for this).
  • Domestic emergencies not involving dependants. If a pipe bursts in an employee’s house or their central heating fails, this would not fall within the scope of EDL. In these circumstances, an employer might want to allow the employee to have a short period of unpaid leave or allow them to work from home, but there is no requirement to do so. (Although, as with all employment-related issues, the employer would need to ensure that not allowing an employee to take time off in these circumstances did not amount to unlawful discrimination.)
  • Planned time off to care for a child. By way of example, if an employee knows that their childminder or nanny is going on holiday and will be unable to look after their child, this will not be covered by EDL. In these circumstances, the employee would need to consider using their holiday entitlement or taking parental leave.
What is covered by EDL
  • Providing assistance if a dependant falls ill, gives birth, is injured or assaulted. This is relatively self explanatory, save that the idea is that the employee would provide assistance at the relevant time, rather than, if for example the dependant was ill, providing care for the duration of that illness.
  • Making care arrangements for the care of a dependant who is ill or injured. As with the previous item, this does not allow an employee to provide the care themselves for the dependant (other than in the immediate aftermath of the dependant falling ill or being injured, whilst care arrangements are being made).
  • Taking such action that is necessary as a consequence of a dependant’s death. This is intended to deal with logistical matters, arising as a result of the death – such as arranging and/or attending a funeral, rather than allowing the employee time off to grieve. As a matter of law, there is no right in Great Britain to “compassionate leave” in these circumstances, although employers may wish to offer such leave.
  • Dealing with an unexpected disruption, termination or breakdown of care arrangements for a dependant. An “unexpected” event in this context does not mean that the employee cannot have known about the disruption, termination or breakdown or care in advance. It is more about the disruption, termination or breakdown not being planned. By way of example, if an employee were to choose to terminate a care arrangement, in most circumstances this would not be unexpected. If, however, their childminder/nanny, etc tells them that they are unavailable a few weeks before the relevant date, this might still amount to an “unexpected” disruption in care arrangements. 
  • Dealing with an unexpected incident which involves the employee’s child during school (or another educational establishment’s hours).
30 September 2014

Shared parental leave - what you should be doing now

Although it may seem that there are many months before the shared parental leave provisions come into effect, there are various things that employers should be thinking about now.

Policy decisions

If you currently offer enhanced maternity pay, will you offer an equivalent in respect of shared parental leave? Have you modelled the likely costs of doing so? Have you considered what your competitors will do and how this may impact recruitment/retention?

If you currently offer a return to work bonus for maternity leave, will you offer an equivalent in respect of shared parental leave? If not, do you have an objective justification for the difference in treatment?

Will you permit employees to take leave discontinuously? If so, have you considered whether you will have a policy or internal guidelines to assist in determining whether any particular request should be granted?

Communication and training

Consider your communication strategy. Note that although the provisions only apply in respect of children whose expected week of birth is, or who are placed for adoption, on or after 5 April 2015, the detriment and unfair dismissal protections are due to be in force from 1 December 2014. By this date you need to ensure that managers are sufficiently aware of, and sensitive to, the new parental leave regime.

21 October 2014

Diversity and inclusivity in parental rights

Employers should be mindful that the new shared parental leave provisions transfer leave from mothers to, not only fathers, but also to the partners of mothers, irrespective of the sex of that person. In addition, they also apply to adoptions, where the primary adopter may be of either gender.

Managers should be careful, particularly when discussing potential shared parental leave requests, not to make assumptions about an employee’s relationship or the sex of the employee’s partner.

HR should be aware that in some cases they may have details of an employee’s personal life that that employee does not wish to be shared more widely (for example, the gender of the employee’s partner may be obvious from the details provided).

However, these issues do not only apply in the context of shared parental leave and employers should review other family-friendly and work-life balance policies to ensure that they reflect the diverse relationships that their employees may be in.

Finally, one potential pitfall is the communications around shared parental leave. It is easy, in attempting to simplify the legislation, to start referring to “mothers and fathers” rather than ensuring that your communications properly and appropriately reflect the wording of the legislation.