Children and Families Bill

Memorandum submitted by Working Families (CF 64)

1 Summary

1.1 Working Families is the UK’s leading work life balance charity. We provide a free legal helpline for parents and carers who need advice about their employment rights at work and receive approximately 3,000 calls a year, with most calls being about maternity and paternity rights and flexible working. We have a network of parents of disabled children who work or wish to work. We also work with employers to benchmark best practice and to create family friendly workplaces. Our evidence is based on our understanding of both employers and employees’ views. Our comments are limited to Parts 6 to 8 of the Bill and elaborate on evidence given orally to the Bill Scrutiny Committee on 7 March 2013.

1.2 We welcome the proposals in Part 6 to introduce shared parental leave and pay as this will provide more choice for some families about how they work and care for children in the first year of life. However, we recommend some changes to the Bill to increase the number of families who will benefit from the reforms, and, in particular, to ensure that all fathers have a right to time off when they have a baby.

1.3 We are pleased to see – in Part 7 of the Bill - the introduction of a right to time off for fathers and partners to attend antenatal appointments and for future adoptive parents to attend meetings with children prior to placements. However, we argue that it would be simpler to allow "reasonable" time off and the Bill is unnecessarily restrictive and bureaucratic in its approach.

1.4 Working Families has long campaigned for the extension of the right to request flexible working to all employees. We warmly welcome the extension which is achieved by changes in Part 8 of the Bill. We raise some concerns about the changes to how employers should deal with applications and suggest improvements to encourage more flexible working take up.

2 Shared parental leave

2.1 Working Families supports the introduction of a transferable system of shared parental leave which does not undermine women’s current rights to maternity leave and pay, but offers increased choice over today’s system of Additional Paternity Leave. In the long term, these changes will help to challenge employers’ assumptions about which parent is likely to be away from work to care for a new baby and may therefore reduce discrimination against pregnant women and those on maternity leave. However, the final proposals fall short of the original changes set out in the Modern Workplaces Consultation. Restrictive eligibility criteria mean that single mothers cannot take the shared parental leave in flexible blocks, self employed fathers will not be able to access any rights to leave or pay, and couples with only one economically active parent will not be able to opt into the system. We would like to see changes to the eligibility criteria – making shared parental leave a day one right (ie with no service requirement) would increase the number of families who can enjoy the new rights. Take-up of the new proposals would also be improved if all statutory leave payments – for maternity, paternity or shared parental leave – were paid at least the national minimum wage.

2.2 We are particularly concerned that the final proposals offer nothing new for fathers in their own right. International evidence suggests that high take-up of parental leave options by fathers requires that the leave is earmarked for them, rather than called "parental leave" and available to either parent. Leave also needs to be paid at a level which adequately compensates for the loss of wages (as shown by evidence in the impact assessment accompanying the Government’s response on Modern Workplaces). The new shared leave proposals do neither: there is no "father quota" nor extension of paternity leave (although we welcome the provisions in Clause 93 which will allow paternity pay to be extended by regulation in the future). Any leave that fathers take will be paid at the flat rate (currently £135.45 per week). Working Families’ research shows that the majority of eligible fathers who do not take their paternity leave now give the reason that they cannot afford to do so. In small private sector organisations 44 per cent of fathers take no paternity leave now. The anticipated take up of shared parental leave by fathers is low – the impact assessment suggests between two and eight per cent of eligible fathers will take up leave. Although the take up rates of Additional Paternity Leave are not recorded, the number of men claiming Additional Statutory Paternity Pay in the financial year 2011-12 was only 1,650 (Hansard,1 March 2013, c744W) compared with approximately 539,000 employed fathers with a partner (2010 figures in the impact assessment). This equates to 0.3% of employed fathers taking up today’s shared leave option.

2.3 Working Families receives a number of calls about paternity leave and pay on our free legal helpline. Paternity leave is currently restricted to fathers who have been employed for 26 weeks at the 15th week before their baby is due, and who meet an earnings requirement. Employed fathers need to give 15 weeks notice of their intention to take paternity leave, and 28 days notice of their intention to claim Statutory Paternity Pay. The service requirement and long notice period for leave means many fathers miss out and have no rights to take paternity leave; they must rely instead on unpaid, short term "time off for dependants" to accompany their partner at the birth. Working Families believes a significant improvement to the Bill would be to make paternity leave a day one right so that all fathers could take time off at the birth. It is inequitable that fathers have to earn a right to leave. We would also like to see paternity leave extended and made available on a more flexible basis, rather than the current one or two consecutive weeks soon after the birth.

2.4 The original Modern Workplaces consultation proposed that the new leave could be taken flexibly to allow part time work and part time pay. Working Families believes that this would be particularly beneficial to low income parents who want to phase a return to work after leave and would like to see this idea reinstated in the Bill. It would also be welcomed by employers who could allow a trial period of a different working pattern for parents who did not wish to return full time, or to smooth the transition back to work. However, the current proposals in the Bill - which only allow leave to be taken flexibly in blocks of at least a week - are unlikely to appeal to employers or employees. Parents will have to get consent from two sets of employers to implement an on-off leave rota, and providing cover for weekly blocks of leave may be difficult for employers to arrange.

2.5 Working Families seeks clarity on the right to return to the same job after shared parental leave. The Bill leaves the issue of the legal protections currently afforded women on maternity leave or fathers/partners on Additional Paternity Leave to regulations. We recognise that introducing flexible blocks of leave may introduce additional complexity to the right to return to the same job after leave. However, we seek assurances that the rights to return will be at least as favourable as current rights. Working Families records high levels of maternity discrimination on our free legal helpline and women being demoted or sidelined after a return from maternity leave is a common complaint. The current law distinguishes between the first six months of "ordinary maternity leave" where women have the right to return to the same job on the same terms and conditions and the second six months of "additional maternity leave" where a woman has the right to return to the same job unless it is "not reasonably practicable" in which case she must be offered a suitable alternative job on similar terms and conditions. In practice it is rare that it is not "reasonably practicable" unless there has been a significant reorganisation or restructuring. We also seek clarity that the special protection afforded women during redundancy situations while they are on maternity leave will be extended to all those on shared parental leave. At present a woman on maternity leave (or father/partner on APL) facing redundancy should be offered any suitable alternative vacancy in priority to their colleagues. We are concerned that the Bill only suggests that regulations "may" make provision about redundancy during shared parental leave – we suggest that regulations "shall" (on page 65 of the Bill) make provision would be stronger.

2.6 We would like to see exceptional circumstances catered for by the Bill. Currently there are no provisions for extended leave for parents of premature babies, nor extra provision for multiple pregnancies. There may also be circumstances when it would be appropriate for another member of the family to be able to access shared leave and pay (for example, if a single mother was unable to care for her child, a grandparent or kinship carer might benefit from entitlement to leave and pay).

3 Antenatal appointments

3.1 Working Families welcomes the provisions in Part 7 of the Bill to introduce a new right for fathers and partners (including intended parents in surrogacy cases) to take two unpaid half days of leave to attend antenatal appointments with their pregnant partner. We also welcome provisions for adoptive parents to take time off to meet with a child before placement. However, fathers/partners are restricted to only two antenatal appointments, irrespective of the complexity of the pregnancy, and to appointments which must not exceed six and a half hours in length. We would prefer to see "reasonable time off" rather than the restrictions currently placed on the Bill. In some cases it would be unreasonable to take six and a half hours’ leave for a short appointment, close to home, first thing in the morning. One of our employer members noted "everyone will take the maximum". In other cases, for example if there is a complex pregnancy, specialist appointments may be far from home and most of the time could be used up in travelling to the hospital. Similar issues apply for adoptive parents or surrogate parents who may need to travel across the country to meet and bond with a child, or to visit a surrogate mother. We would also welcome provisions in the Bill to enable fathers and partners’ leave to be paid.

4 Flexible working

4.1 Extending flexible working rights to request to all employees (Clause 101) is very welcome. Many employers already offer flexible working to all their employees and reap the business benefits of increased productivity, reduced absenteeism and sickness rates, and talent retention. Our research suggests that parents will benefit if flexible working becomes culturally acceptable, rather than seen as a concession for particular groups (notably mothers of young children). The impact assessment accompanying the Government’s Modern Workplace response quantifies the net benefits as £116.66 m to employers over a ten year period.

4.2 We are not convinced that removing the procedures by which an employer should respond to a request from primary legislation and replacing them with a duty to respond "reasonably" and "within three months" will be beneficial. The current system works well and provides a clear and simple timetable which prevents employers prevaricating when they receive a request. Some of our employer members have raised concerns about whether "reasonable" behaviour will be more contestable at tribunal. We seek assurances that the draft code of practice to guide employers - on which ACAS is currently consulting – will be a statutory code, and that an employment tribunal may penalise an employer who fails to take it into account. There is no reference to the code in this Bill.

4.3 We would like to see further amendments to the Bill to improve access to flexible jobs. The requirement that an employee must work for an employer for 26 weeks before they have the right to request flexible working remains unchanged. Many parents and carers – particularly parents of disabled children – cannot enter a full time job and then scale down later, but too few jobs are advertised on a flexible or part time basis. We are pleased that the Government has an aspiration that the Civil Service becomes an exemplar in flexible working. We applaud the practice (set out in the Government’s Modern Workplaces response) that Civil Service jobs should be advertised by default as available for full time, part time or flexible working and "Departments that wish to deviate from this have to complete a robust business case". All public sector jobs should be advertised on a flexible, part time or job share basis unless there is a sound business reason why not.

4.4 Working Families would also like to see an amendment to the Bill to introduce adjustment leave to provide additional short term flexibility for families going through a crisis. Exercising a statutory right to request flexible working results in a permanent change to contract, and can only be exercised once every 12 months. It can also take up to three months for a request to be considered and agreed. In some circumstances, this may be too long to wait and can result in a parent or carer leaving their job, as they are unable to manage their  immediate caring responsibilities. For example, parents of disabled children may need significant time off during the time that their child’s disability is being diagnosed, but it may not be appropriate to request flexible working until a clear pattern of their care needs has been determined. Our recent survey of 1,000 parents of disabled children found that 27% were out of work, the majority having given up work to look after their disabled child. However, once out of work it was extremely difficult to get back in, particularly to a flexible job, and over 50% had been out of work for over six years. Adjustment leave would also help people who become carers overnight – perhaps a parent has a stroke, or a friend becomes ill – and provide time for them to sort out care arrangements and consider what form of flexible working they may need.

March 2013

Prepared 19th April 2013