Brexit seemed to put the brakes on progress for family-friendly rights last year, but 2020 and beyond could see some key policy and legal developments in this space, says Esther Langdon.
We could be forgiven in thinking the government only had time for Brexit in 2019, but there are some important employment law developments on the horizon, many of which focus on supporting working families.
While these developments stop short of a root and branch review of family friendly rights, their cumulative effect is potentially great, and employers need to be on top of these changes.
This is on both the macro level – understanding changes in society and the long-relied upon assumptions of what a modem workforce needs and wants when it comes to supporting working families – and on the micro level, in terms of the technical details of changes, and the new and increased rights for employees.
Recent consultations, expected legislation and time frame
In 2019, the government consulted on extending redundancy protection for employees returning from family leave.
In July it published its response, confirming that existing protection (which currently applies only during maternity leave) will be extended so that it applies from the point of notification of pregnancy to six months after the end of maternity leave. A new employment Bill will be introduced when “parliamentary time allows”, but that means the timing is anyone’s guess.
This year should also see the introduction of regulations to implement the Parental Bereavement (Leave and Pay) Act 2018, which provides that employed parents who have lost a child will be entitled to two weeks’ leave to allow them time to grieve away from the workplace.
Last year saw the publication of the government’s consultation into the findings of the Matthew Taylor review of modern working practices – the Good Work Plan. This included a potentially wide-ranging consultation paper on reforming the parental leave and pay system.
Proposals were split into three main parts
- introducing neonatal care leave and pay;
- requiring greater transparency over flexible working and family-related leave policies; and
- how to reform the parental leave and pay system.
Parental leave and pay
The government’s policy objectives in the third part of the consultation are interesting when considering how we can expect law and policy to develop.
They aim to create system of parental leave and pay which gives women rights and protections so they can prepare for and recover from birth; return to and stay in work (boosting female participation in the labour market); give working families more choice and flexibility; increase paternal involvement in childcare; close the employment and gender pay gaps; prevent pregnancy and maternity discrimination; prevent discrimination against parents who take or seek to take parental leave; and minimise the burdens on business.
The consultation is ambitious in its scope and breadth. It looks at potentially significant changes to paternity leave and pay and to the operation and administration of shared parental leave and pay (which some may say are much needed given the low take up, and others may say are still not enough to make it a success) and also looking at parental leave for older children.
It ends with a high-level review of family-friendly provisions, asking for views on whether there should be a more radical change – potentially moving to a single ‘family’ set of leave entitlements, or seek to reform the existing entitlements.
While a cynic may think that, in reality, there is little appetite or capacity for such deep change in the short term, the fact that such thinking is on the radar is interesting in itself and perhaps a taste of things to come when there is more time for considered reflection.
The government has already stated its intention to introduce new legislation in the introduction of neonatal care and leave. Consultation on the remaining areas closed in the final part of last year and the government’s response is eagerly awaited.
Cases in the pipeline
Cases to be heard in 2020 may well grapple with questions which go to the heart of how the law protects working parents, and whether changes are needed to reflect changes in society, in particular the increasing role of fathers in caring for children.
We are waiting for dates of when the Supreme Court will hear the appeals of the cases of Ali and Hextall. In these cases, the employers failed to pay male employees enhanced shared parental pay.
Consideration of these appeals will give the Supreme Court the chance to comment on, and potentially to reshape, the interplay between sex discrimination and parental rights.
Will the Supreme Court agree with the Court of Appeal that mothers are entitled to special treatment, and that maternity leave encompasses not just childcare but matters exclusive to the birth mother resulting from pregnancy and childbirth and not shared by the husband or partner?
This gives a flavour of the enormity of the questions which we can expect tribunals and courts to face in 2020 and beyond.
In the same vein, we can expect challenges to the generally accepted assumption underlying many indirect sex discrimination claims that women tend to have more childcare responsibilities than men and may also see a rise in claims from fathers for direct sex discrimination if women in their organisation are being given more flexibility than they are.
As the modern family changes, so too will the protection afforded by the law.
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