Rachel Crasnow's article on Family Rights at Work has been published in the Equal Opportunties Review.
The article looks at the Government's recently published "Modern Workplaces" Consultation.
The text of the article can be read below:
The Government has published its response to the "Modern Workplaces" consultation on the overhaul of family rights at work, including shared parental leave, extended flexible working and new rights for surrogate parents. Rachel Crasnow explains the issues.
The Coalition Government has put forward its proposals following the consultation on "Modern Workplaces" (PDF format, 394KB) (opens in new window). Below, we examine some of the proposals in detail, with an explanation of some of the issues that they raise.
Shared parental leave
A new system of flexible parental leave will be introduced in the UK from 2015, which aims to encourage a more shared approach to early childcare responsibilities. The proposals introduced by the Deputy Prime Minister on 13 November 2012 are intended to shift the status quo away from the current conventional cycle, where women take the bulk of the parental leave (they get statutory leave for 12 months and pay for nine months, whereas men only get their two weeks of paid paternity leave). What frequently happens thereafter is that mothers continue to be the primary carers, going part time, earning less, and finding it difficult to return to their pre-maternity earnings level.
From 2015, it is proposed that a mother will be able to trigger flexible parental leave at any point from when her baby is two weeks old, and whatever time is left to run on her original maternity leave year can be taken by her partner instead. Alternatively, the parents can take it in turns to use the remaining time between them, or take time off together. The limit is that 12 months is the total time that can be taken off and nine months of that is at guaranteed pay (the SMP rate will be the same for mothers and fathers). All couples need to give proper notice to their employers.
There will be no specific period of time reserved for fathers, other than the existing paternity leave. However, flexible leave will be reviewed by 2018, with extending paternity leave and the possibility of "use it or lose it" paternity leave examined again then.
The logistics of the expanded scope of shared parental leave will be complex, to say the least. It is currently unclear how human resources will manage a workforce that is permitted to take its parental leave in small blocks.
Some commentators have said that the likelihood of fathers being able to afford to take shared parental leave in a recession is wishful thinking for the majority of families. However, as a man who takes a month off work when his baby is between two and six weeks old will be entitled as a matter of statute to 90% of his average weekly wage, it means that high earners are not necessarily ruled out of the new parental leave system, should the mother be content with a month back at work early on. No guidance has yet been issued by Government as to whether workplaces that provide enhanced contractual maternity pay will be obliged to match this with parental leave payments. It is possible that fathers could argue it is unlawful not to match mothers' pay when on parental leave, although the view of Maternity Action suggests that the Government's new model will not give rise to discrimination claims (see Modern Workplaces: comments on reform).
Fathers will acquire a new right to take unpaid leave to attend two antenatal appointments. Intended parents in surrogacy arrangements will also be eligible for such unpaid time off - it is not as yet clear if this new right will apply to female partners of pregnant women, but if the right is being granted to intended parents it would be strange if same-sex partners were excluded.
Surrogate parents and adopters
Although the Government did not consult on adoption or surrogacy rights during the Modern Workplaces consultation, it has put forward proposals in these areas that are expected to affect around 4,000 families each year. It is proposed to iron out existing differences in leave provisions between birth parents and adoptive parents, such as the qualifying period and the rates of pay for SMP.
The Government has said: "It is ridiculous that adopters should be financially worse off, so we'll make sure the primary adopter is guaranteed 90% of their salary in the first six weeks too."
In addition, an equivalent of maternity allowance will become available to self-employed or low-paid adopters.
Also, for the first time, the Government intends to extend adoption leave and pay to couples who become parents through surrogacy arrangements ("intended parents"), who meet the qualifying conditions and intend to apply for a Parental Order. Such intended parents will also become eligible for statutory adoption leave as a "day 1" right as well as 90% salary enhancement for the first six weeks.
Fewer than one hundred children are born as a result of surrogacy arrangements in the UK every year. However, currently only mothers who are pregnant or adopting are entitled to maternity leave. In contrast, intended fathers have had some parental leave rights since April 2012 (as Kate Hodgkiss discussed in EOR 230), so long as they have obtained a parental order so that legal parental responsibility is permanently conferred upon them. Such fathers are then permitted to take over childcare at five months, as long as the surrogate birth mother has declared that she had returned to work, and subject to qualifying criteria, the father is entitled to up to 26 weeks of additional paternity leave (APL). APL is paid at the flat statutory rate, and many contractual enhanced maternity pay schemes drop back to this rate after 20 weeks. There is also the possibility of such a father qualifying for two weeks' paid ordinary paternity leave, so intended fathers are currently in a more favourable position than intended mothers who, not being the birth mothers, are not entitled to statutory maternity leave, maternity pay or maternity allowance.
Thus far there has been no explanation given as to why those who are fortunate to conceive naturally should be treated more favourably than mothers who have children using a surrogate because of fertility issues. Those who have IVF using donor eggs and give birth are entitled to maternity leave. There may be no need to recover from the actual birth for an intended mother, but no one would argue that the entirety of the maternity leave period is intended for that purpose, rather it is for the bonding with and care of the new child. Why should an intended mother be treated differently to an adoptive mother in these circumstances, where neither has given birth?
No guidance is yet available as to whether intended parents need be married or cohabiting or if they will be able to rely on the new rights if single. Since 2008, parental orders have been available to unmarried couples and same-sex couples, but not yet to single parents, unlike adoption law and reproductive law, both of which permit single parents to adopt and single women to conceive through donor insemination respectively. This is part of the wider reform of surrogacy laws, outside the employment field.
The reforms to surrogacy rights at work may impact upon the existing case of C-D v S-T  EqLR 185, where an employment tribunal made a reference to the Court of Justice of the European Union to determine whether a woman, who has had a child by a surrogate mother, is entitled to the benefit of EU pregnancy and maternity rights, or the judicial review proceedings launched in September 2012 in RKA v Secretary of State for Work and Pensions, where it is asserted that denial of paid maternity leave for intended mothers breaches Article 8 of the European Convention on Human Rights as it prevents the chance to care for and bond with the new child.
Even if the European Court or High Court finds that the Equal Treatment Directive or the Pregnant Workers Directive does cover intended mothers, whether by their association with surrogate mothers or breastfeeding, or bonding with a young baby, that this surrogacy law reform has now been proposed could impact on objective justification issues. Such consideration might be similar to those factors which arose in the SeymourSmith litigation, where in 2000 the House of Lords held after the case returned from the ECJ, that the Government must review the discriminatory measure in question periodically and that, depending on the circumstances, the Government might become obliged to repeal or replace the offending measure.
It is proposed to extend the right to request flexible working to all employees from 2014. As well as other relatives or family friends being able to ask to change the way they work in order to help with childcare, the reason for the request for more flexible working patterns - be they compressed hours, flexitime, working from home and so on - need not be associated with caring at all.
The Government has said: "Extending the right to request flexible working to all employees will enable all employees to request changes to the way they work and create a better work-life balance whether they are older employees who want to stagger their retirement, disabled employees who need to make minor adjustments to their working pattern so they can compete in the workplace, or individuals who want to get more involved in community or charity work."
It is hoped that this extension will make it easier for fathers to work flexibly, remove resentment from non-parents who will now be able to make requests in their own right, and assist with privacy issues, in that individuals requesting flexible working will not need to identify the reasons for the request - although one might imagine that providing the reason for the request will in most circumstances assist with balancing the desires of the employee against the needs of the business.
Employers will be required to consider all requests in a reasonable way as they are under the existing right.
Future debates are likely to be around the prioritising of flexible work requests and the possibility of annual reviews to flexible working, to ensure that all employees have access to this way of working should they wish it.
Other proposed measures
The key announcements set out above were accompanied by a range of measures which are also aimed at encouraging women to remain in or return to work.
For example, the announcements made about legislative steps aimed at improving childcare provision include an intention to initiate new start-up grants for childcare providers and to extend a set number of hours of weekly free childcare to two-year-olds for families in the lowest 20% income bracket.
Lastly, the age limit on parental leave will increase from five years to 18 years in 2015; this applies to each parent for each child under 18 along with an increase to the amount of unpaid parental leave, from 13 to 18 weeks. The Government hopes this will help with absences such as school holiday cover.
Many of these new shared rights may be complex to work out in practice, such as two parents having to agree individual patterns of leave with two different employers. There may also be challenges ahead with regard to the suggestion that each parent will need to meet the qualifying criteria for leave and/or pay in their own right, mirroring the criteria for existing entitlements such as maternity pay and allowance and paternity pay and leave.
But as an intended move away from the piecemeal range of family workplace rights currently in existence, the proposals are to be welcomed, particularly in tough economic times when it is easy to ignore such rights in the face of significant cuts.