Work and Families Bill: encouraging working parents

The government has taken another step towards its manifesto promise of improving the lot of working parents with its Work and Families Bill, published on 19 October 2005.

Although much of the detail is to be worked out in subsequent consultation and regulations, the framework indicates that the package is well balanced. Along with increased rights for parents, there are sensible measures for employers that enable them to plan effectively for periods of absence.

The fact that the government has taken advice from HR experts on how to introduce the new measures with minimum additional burdens should also appease employers (see box "Key points").

Maternity and adoption

There are currently different service qualifications for ordinary maternity leave (OML) and additional maternity leave (AML). All pregnant women are entitled to OML regardless of their length of service while only those employees with six months' service at the 15th week before their due date are entitled to AML (for background on the current rules, see feature article "The family friendly workplace: a right for all or a prize for few?", www.practicallaw.com/0-101-4789).

The government mooted a number of options to simplify the regime, including abolishing AML in favour of a single period of OML for 52 weeks. In the end, the government decided against this: it now intends to change the eligibility rules so that all women who qualify for OML also qualify for AML. This will mean that all pregnant employees will be entitled to 52 weeks' leave, regardless of their length of service.

The period of payment for maternity and adoption pay is being extended from 26 weeks to 39 weeks. This is the first step on the way to providing statutory maternity pay (SMP) and statutory adoption pay (currently at the rate of £106 per week) for the full 12 months' leave by 2010.

Pay and leave are being aligned so that both can start on any day of the week. This is welcome because the current rules allow leave to start on any day of the week but pay commences on the first Sunday following leave. For those women working right up until the birth, if they are unlucky enough to have their baby on a Monday, which triggers maternity leave, they will be without pay for almost a full week.

Another sensible idea is the introduction of new "keep in touch days" to enable women on leave to work for a limited number of days without losing SMP. It is not clear at this stage how many of these days will be permitted. Reading between the lines, it would appear that the government envisages that the employee might work (or train) for no more than two or three days.

The period of notice when returning to work early is being extended from four to eight weeks. This is beneficial for both employees and employers as it still allows the employee to return to work early if there is a change in circumstances, but at the same time gives the employer more time to tie ends up with the maternity cover.

Employers will be allowed reasonable contact with the absent employee during any stage of the leave. At the moment some employers feel reticent about contacting new mothers but the clear message from the government is that sensitive communication can be a good thing. Keeping in touch on things like the return date should benefit both sides, particularly if the employee will not be penalised for giving early notice of non-return to work (see below).

Employees who do not wish to return to work will be encouraged to give as much notice as possible. In the past, employees have left notification right to the last minute for fear of losing rights to accrued benefits. Guidance will make it clear that if a mother gives more than the required notice that she does not wish to return to work, this of itself cannot bring the contract to an end.

Paternal leave

The government's original proposal to allow mothers to transfer part of their leave and pay to partners was received with mixed responses. Employers were concerned about the additional administrative burden while employee organisations thought that the leave should be a free-standing right for fathers.

As a result, the government has abandoned the idea of transferable leave in favour of the hybrid Additional Paternity Leave (APL). The first six months' maternity leave will be preserved for women and cannot be shared. Thereafter, if the mother has returned to work, the father will be entitled to a maximum of 26 weeks. If the mother has not used up her full entitlement to SMP, this will transfer to the father. So, for example, Mary takes 30 weeks' maternity leave and then returns to work. Her partner, Sam, who works for a different company, could if he wished take 22 weeks APL, nine of which would be paid at the statutory rate.

Flexible working for carers

The right to request flexible working will be extended to carers of adults from April 2007. The government does not believe that there is sufficient case to extend the right to other parents or all employees at the moment.

Next steps

The government plans to consult on secondary legislation early in 2006. Regulations extending maternity pay will come into force in October 2006, so that they are in place for babies due in April 2007. The government has promised that guidance will be issued "well in advance of 2007".

At this stage there is very little that either employers or employees can do except sit back and wait for the details to be published.

Sheila Fahy is a professional support lawyer at Allen & Overy LLP.

The Work and Families Bill is available at www.publications.parliament.uk/pa/cm200506/cmbills/060/06060.i-ii.html.