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Government publishes Children and Families Bill which contains proposals on shared parental leave and flexible working

12th February, 2013

The Government has published the Children and Families Bill (“the Bill”) consisting of a number of proposals for children and families which, as previously reported, were included in the Government’s response to its Consultation on Modern Workplaces. The Bill had its first reading in the House of Commons on 4 February 2013.       

Part 6 of the Bill (clauses 87-96) is to amend the Employment Rights Act 1996 (“ERA”) creating new rights to shared parental leave and pay. Women will continue to be eligible for maternity leave and statutory maternity pay or allowance but will be able to choose, after two weeks, to end their leave early and share the remaining leave and pay with their partner. Features of the Bill include provisions that:

  1. When calculating the amount of leave taken, part of a week will be treated as a full week;
  2. Employers will be entitled to require employees to take leave in a single block;
  3. Eligible adopters will also be able to use the new system for shared parental leave and pay;
  4. Adoption leave and pay will be extended to prospective parents who are ‘fostering-to-adopt’, and eligible parents in a surrogacy arrangement intending to apply for a parental order; and
  5. Additional paternity leave and additional statutory paternity pay are also to be repealed.           

Part 7 of the Bill (clauses 97- 100) is to amend the ERA in order to create a new right for employees and agency workers who are in ‘qualifying relationships’ to take unpaid time off work to attend up to two ante-natal appointments with a pregnant woman (for a maximum period of six and a half hours for each appointment). An employer may require an employee or agency worker to make a declaration stating:

  1. That they have a qualifying relationship with a pregnant woman or her expected child;
  2. That they are taking the time off to attend the ante-natal appointment;
  3. That the appointment is made on the advice of a registered medical practitioner, midwife or nurse; and
  4. Information relating to the date and time of the appointment.

The Bill also provides that there must be provision for paid and unpaid time off work for employees to attend meetings arranged by an adoption agency before the placement of a child for adoption. If employees and qualifying agency workers believe they have unreasonably been refused time off to attend ante-natal appointments they will be able to bring a claim in the Employment Tribunal. If successful, the Tribunal must order the employer to pay a sum equivalent to twice the worker’s hourly rate for each hour they would have been at the appointment.

Part 8 of the Bill (clauses 101-104) is to amend the ERA and extend the right to request flexible working from employees who are parents or carers to all employees. The Bill will also remove the current statutory procedure when considering flexible working requests. Employers will instead be under a duty to deal with applications for flexible working ‘in a reasonable manner’ and will also be obliged to notify the relevant employee of its decision within three months of their application (unless an extension is agreed). An employee’s request can be viewed as withdrawn if, without good reason, they fail to attend two consecutive meetings to discuss their request or appeal. Acas is planning to publish and consult on a statutory Code of Practice which will outline the minimum requirements when considering such a request. It will be interesting to see how closely this guidance mirrors the current statutory procedure.

Further details in relation to the above are to be set out by the Secretary of State in regulations published at a later date. For further advice or information in relation to employment law updates, please contact Helen Watson on 01244 405565 or send an email to [email protected].


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