Delivering on parental rights

The right to request flexible working has never been more than window dressing in terms of creating a family friendly working environment. In reality it is a toothless hound. Just as employees have always had the right to ask for a pay rise, they also had the right to ask for a change in their working hours.

If the request is reasonable, the reasonable employer usually grants it. Arguably this one is akin to a phantom pregnancy, in other words the employee thinks they are acquiring new rights, but there is nothing there at all of substance for the midwife to deliver.

The government recently published ?the Children and Families Bill (which ?will bring about a number of changes ?to employee rights on flexible and ?parental leave).

The original proposals date back to May 2011, so you could say they have taken a while coming. Just how effective the new changes will be is a matter for debate. When looking at the changes in detail, however, they could sound more radical than they really are.

It is anticipated that the usual sanctions will continue to apply in terms of failure to follow procedures, and the ability – or lack thereof – to challenge the reasons given for refusal in relation to flexible working requests. The limitation on such awards – currently eight weeks pay – render the sanctions ineffective. The rights to bring claims in appropriate circumstances under the Equality Act will continue to exist in exactly the same way where the refusal amounts to, for example, indirect sex discrimination or a failure to make a reasonable adjustment.

Nuts and bolts

Some commentators have hailed these changes as radical and ground breaking. The path will be clear for mum to go back to work as soon as it is deemed medically safe – two weeks leave will still be compulsory – and for dad to take the remaining 50 weeks of leave. At some level these changes must be applauded simply because that possibility will now actually exist, whereas hitherto it did not. However it remains exactly that, only a possibility, as it depends on whether people can afford it.

Frustratingly the nuts and bolts of how shared leave will operate have not yet been published, although some detail has emerged. For example, leave will have to be taken in minimum blocks of one week. In theory this means that two employers could be faced with two employees working a week off/week on for nearly a year. While there may be proactive measures that employers could take to encourage a culture whereby an employee gives as much notice as their circumstances permit, the reality is that where childbirth is concerned the position is always fluid. The mother who only wanted two weeks off may find she does not want to return at all and, conversely, another may decide that she is keen to return to the workplace as soon as she can.

Notional only?

If, in reality, the take up by dads of their new leave entitlements if very poor, then it has all been a waste of time. It is disappointing that the proposal to extend paid paternity leave by four weeks was dropped. This may suggest that the changes are family friendly in a notional sense only.

Of those fathers eligible to take additional shared leave under the present rules, statistics show that take up has been no more than between 2 to 8 per cent. Gender pay inequality remains rife. Childcare arrangements are substantially driven by domestic economics. If dad earns more – as he generally does, he will stay at work to bring home the bacon. Until the gender pay gap narrows, these changes will not have any real impact and the take up by dads of leave entitlement to assist in genuine shared parenting will continue to be extremely poor.

There is little that can be offered to employers at the present time in terms of proactive steps that can be taken to prepare for these changes until the detail has been fleshed out. If the cynics are wrong, and the take up by dads is high, employers may be required to accommodate some very complex arrangements, and it will be the boss, and not the parents, who need postnatal support.