“These changes are designed to provide equal flexible working rights to all employees, but what is the impact on employers and how can businesses prepare to accommodate these additional rights?”
Flexible working has been a key item on the agenda of the employment law landscape this year, with changes being introduced by the Children and Families Act 2014. We have already seen the right to request flexible working being introduced to all employees (not just those with families or dependants). Next year, we expect further changes with the right to shared parental leave being introduced from 5 April 2015. These changes are designed to provide equal flexible working rights to all employees, but what is the impact on employers and how can businesses prepare to accommodate these additional rights?
The Right to Request Flexible Working
From 30 June 2014, any employee (with 26 weeks’ continuous service) may request flexible working arrangements, and employers are now under an obligation to consider such requests reasonably and within a reasonable period. The previous statutory procedure prescribing the method and timeframe to make and deal with a request has been abolished; now, an employee must be notified of the employer’s decision within three months of the request being made.
Shared Parental Leave
From 1 December 2014, and for parents of children born or matched for adoption on or after 5 April 2015, parents may opt to share parental leave. Mothers will continue to take the first two mandatory weeks of leave following childbirth, but after this time, parents may choose to share the remainder of the maternity leave as flexible parental leave. Unless an employer is more generous, pay will be at the statutory level. This means that, for the first six weeks the person on leave will receive 90 percent of his or her average weekly earnings before tax; after that, it will be 90 percent or currently £136.78 (whichever is lower) for 33 weeks.
Impact on Businesses
Failure to accommodate flexible working requests could be risky for businesses; employers who fail to respond to such requests reasonably will risk discrimination claims and a penalty up to the statutory maximum of eight weeks’ pay (currently £3,712). To avoid these risks, employers should ensure that all requests are considered reasonably, within a reasonable timeframe and consistently.
Businesses need to update or implement new flexible working policies. Flexible working requests can still be refused on prescribed grounds, such as the burden of additional cost or detrimental effect on the quality of an employee’s performance or ability to meet client needs. In reality, if an employee’s request is unreasonable in the circumstances, the employer will be able – reasonably – to refuse it.
Shared parental leave
Employers who already offer enhanced maternity pay will need to decide whether they will offer enhanced shared parental leave in a similar way. It should be noted that, if enhanced maternity pay is available for employees on maternity leave but not for those on shared parental leave, employers face a risk of sex discrimination claims.
Employers should prepare shared parental leave policies and update their existing maternity, adoption and paternity policies. Employers may also wish to undertake informal discussions with employees who have requested maternity, adoption or paternity leave to identify who intends to take shared parental leave and when they wish to take it.