The
Employment Act 2002 introduced important new ‘family-friendly’ rights at work
for parents. It also enhanced existing rights. All the new rules become fully
effective on 6 April 2003. Paul Secher outlines how they will affect you and
your employees
The
main rights:
–
Maternity Pay and Leave
–
Paternity Pay and Leave
–
Adoption Pay and Leave
–
Flexible Working
Maternity
Key
changes include:
–
Ordinary Maternity Leave (OML) has increased to a maximum of 26 weeks.
–
Additional Maternity Leave (AML) has increased to a maximum of 26 weeks
following on immediately from the end of the OML period.
–
Employees have to give notice of the start date for maternity leave 15 weeks
before the baby is due, but can change this provided 28 days’ notice of the new
date is given.
–
Notice of 28 days’ has to be given if returning to work before the end of the
OML or AML period.
–
Once the maternity leave start date is set, employers must inform staff in
writing of the deadline for returning at the end of their leave.
–
The rule that maternity leave starts automatically if the employee is absent
for pregnancy-related reasons within the last six weeks before the baby is due,
now only applies for the last four weeks.
–
The basic rate of SMP rises from £75 to £100 – if 90 per cent of normal weekly
earnings is less than £100, then the lower figure applies and will continue to
apply throughout the 26 weeks of OML. This is a change from the old rules,
whereby the 90 per cent only applied during the first six weeks.
Remember
that during OML, contractual provisions (except those related to salary)
continue to apply. So seniority rights, accrual of pension and annual leave
continue for the full 26-week period, if taken.
Paternity
Paid
paternity leave is a brand new statutory right. The rate is the same as for
basic maternity pay.
Key
points:
–
The right is two one week or two consecutive weeks’ leave for the purposes of
caring for the baby or supporting the mother, and leave must be taken within
eight weeks of the birth.
–
Paternity leave is available to the baby’s father and to the spouse/partner (of
either sex) of the mother, even if they are not the parent
–
The intended start date must be notified together with the expected date of
birth, 15 weeks before the baby is due.
–
During paternity leave, all contractual terms (except pay) are preserved, and
the employee has the same right to return to work as if returning from OML (ie,
the right to return to the same job).
Adoption
The
rules are essentially the same as for maternity leave, modified where
necessary.
Key
points:
–
Leave starts up to 14 days before the child is placed with the adoptive parent.
–
Adopting parents choose which of them will take the full adoption leave.
–
Statutory Adoption Pay (SAP) runs for 26 weeks – but at the flat rate only – ie
£100 per week or 90 per cent of normal weekly pay if that is lower. There is no
higher rate of SAP.
Flexible
working
Employees
who are parents of children under six years old (or under 18 if disabled) are
now entitled to request flexible working. The employee must put their case
forward in writing and explain how they think the request may be accommodated
by the organisation.
The
employer must give serious consideration to the request and either agree to the
variation or call a meeting with the employee within 28 days. Any change to
terms and conditions is permanent – so, for instance, an employee cannot insist
on returning to work full-time when the children are older.
Where
an employer refuses a request for flexible working, it must be explained for
one or more of the following reasons:
–
Burden of extra cost
–
Inability to meet customer demand
–
Inability to organise work within available staffing
–
Detrimental effect on performance
–
Inability to find extra staff
–
Detrimental impact on quality
–
Insufficient work during the periods the employee wishes to work
–
Planned structural changes
Refusals
may be appealed. See the stages below for the Right to request flexible working
procedure in full.
Failure
to follow the correct procedure may result in an Employment Tribunal claim. If
the tribunal upholds the claim, it can award up to eight weeks’ pay as
compensation and order the employer to reconsider the application, following the
same procedure.
Right
to request flexible working
1.
Employer receives an application for flexible working.
2.
Employer and employee meet within 28 days to discuss the application.
3.
The employer writes within 14 days of the meeting, notifying the employee of
their decision. If the request is accepted, both employee and employer must
consider what arrangements need to be made for changed work patterns.
4.
If the request is rejected, the employee must decide whether to appeal against
the employer’s decision. It must be in writing, setting out the grounds of
appeal.
5.
The employer receives the employee’s written appeal within 14 days of the
rejection.
6.
A further meeting between employer and employee is then required within 14 days
to discuss the appeal.
7.
The employer writes to notify the employee within 14 days of the appeal
discussion. If the request is accepted at this stage, both employee and
employer must consider the arrangements they need to make for changed work
patterns.
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8.
If the request is rejected, the employee, in specific circumstances, can take
their case to employment tribunal or binding arbitration.
Paul
Secher is managing director of JSB Training and Consulting, which runs
employment law training courses.
