Family guys

The government's Consultation on Modern Workplaces published in May promises legislation that would make employment practices in the UK more flexible and family-friendly. One of the main proposals in this regard '“ in addition to legislation on holiday, and with equal pay '“ relates to parental leave and flexible working (see box). New laws intended to come into force by 2015 would, among other things, promote shared parenting and extend the right to request flexible working.

But behind the apparent consensus there are already doubts whether the proposed legislation would be sufficient to bridge the cultural gender gap, while employers could face a greater administrative burden.

Fathers sharing in childcare

The proposals go some way towards encouraging active participation of fathers in childcare. They support the general move towards the shared parenting model in other jurisdictions, such as Sweden and Germany. The consultation cites studies of the positive effects of fathers being involved in parenting at an early stage, with children having fewer behavioural problems and better educational prospects.

Commentary on the consultation suggests that the proposals would help reduce gender inequality in the workplace and address some of the cultural obstacles to women's career progression. The consultation identifies that the pay gap between male and female median earnings is around ten per cent and that this is largely associated with women taking time out during maternity leave.

With a greater proportion of women being the main breadwinner, the more flexible approach to parenting would enable a woman to return to work earlier than is the case under current maternity legislation. It will be interesting to see what uptake there will be from fathers to the new leave.

Red tape burden

The focus of the consultation paper is on simplifying the current system and bringing it in line with other European jurisdictions. Some commentary, however, sees these new proposals as sitting oddly with the government's recent pledge to remove red tape and to make employment law more straightforward to employers. We have only recently seen the government introduce its legislation on additional paternity leave and now it seems that it is gearing up for another overhaul.

Much has been made of whether the proposals will adversely affect small businesses. In fact, the government is currently consulting on whether the proposals will apply to micro businesses (those with fewer than ten employees) and start-ups. It seems unlikely, however, that there will be an exemption for small businesses and micro businesses, especially with flexible parental leave and the difficulties that might arise if the mother works for a micro business and the father for a large employer, if different rules apply.

It seems that larger employers are better equipped to accommodate the new proposals. Much has been made of the proposal to allow employees to take time off in blocks (rather than as one continuous period of leave). The government is clear, however, that an employee will only be able to take leave on this basis provided the employer agrees.

The government envisages that this would be beneficial to employers as it would enable them to take employees back into the workforce to work on a particular project. It is unclear how much of a benefit this would be to many employers: many employers are likely to argue that it is much more straightforward to accommodate, and get temporary cover for, an employee who is going to be absent for a period of time from the workforce, rather than having to provide cover for someone who elects to break up their leave into smaller blocks.

It is, however, questionable how many employees would elect to take their leave in this way. There is currently a right for both men and women to take up to ten 'keeping in touch' days during their leave, without bringing their leave and pay to an end '“ although statistics indicate that a minority of employees actually take up this right.

While it remains open for an employer to refuse an application by an employee to take leave in blocks, it nevertheless remains a right for employees to request that they take their leave in this way. This is likely to see employers face grievances from employees who are not permitted to split their leave into blocks. Many employers refuse flexible working requests on the basis that they do not think it is possible to organise their workforce in such a way to allow the request. If employers agree that employees can take their flexible parental leave in blocks, this is likely to make it more tricky for them to argue that a flexible working request could not then be granted on the employee's return from leave.

The extension of the right to flexible working to all employees is unlikely to be an issue in practice. An increasing number of employers are accepting flexible working requests from all staff and the government cites a recent survey which shows that between 80 and 90 per cent of flexible working requests are accepted. (However, one always wonders quite who participates in such surveys and whether those most resistant to flexible working would ever do so.)

Employers will still be able to reject flexible working requests on certain permitted grounds. It also seems likely that the government will allow employers to prioritise competing requests; for example, allowing an employer to prioritise a flexible working request from a parent over someone who wishes to work flexibly for motivational reasons.

It is difficult to know whether the code of practice will really improve employers' attitudes to flexible working until the draft code of practice is available and we see it operating in practice. Certainly the government recognises that other initiatives will be required to encourage employers who are resistant to the principle of flexible working. The code will hopefully provide helpful examples of successful flexible working arrangements to encourage employers to think more proactively about the options for flexible working that might exist in the workplace.

The right direction

The new proposals are '“ as far as families are concerned '“ a step in the right direction to facilitate shared parenting. They are, however, likely to cause employers some headaches. In particular, the scope for employees to argue that they should be permitted to take parental leave in blocks rather than as one continuous period of leave opens a new, potentially tricky, avenue of debate between employees and employers.