Children and Families Bill

Memorandum submitted by TUC (CF 80)

TUC response to Children and Families Bill

 Summary

1. The TUC represents 53 affiliated unions who together represent some six million workers. The TUC broadly supports parts 6 to 8 of the Children and Families Bill which provide for: shared parental leave and pay; better rights for parents who have children via surrogacy or adopt; time off for fathers/partners to attend ante-natal or adoption appointments; and the extension of the right to request flexible working.

 

2. However, under the proposed Bill, the government estimates that only two to eight percent of eligible fathers/partners will take shared parental leave. To increase take-up of shared parental leave the Bill should provide for: a reserved period of leave for fathers/partners; eligibility for shared parental leave as a day one right, and improvements in the low flat rate of pay.

 

3. The eligibility criteria for shared parental leave are complex and risk creating confusion for employees and employers. Instead shared parental leave should be a day one right, there should be an allowance (equivalent to maternity allowance) for those who do not qualify for shared parental pay, and the removal of other criteria such as the requirement for the partner to be economically active.

 

4. The Bill proposes that shared parental leave can only be taken in weekly blocs. Instead parents should be able to take leave more flexibly e.g. on a part time basis, and that employers should consider shared parental leave requests in a reasonable manner.

 

5. To tackle the alarming levels of pregnancy discrimination and encourage fathers/partners to take shared parental leave, the TUC supports a clear right of return to the same job for those taking leave to look after a child irrespective of the length of that leave.

 

6. The right to unpaid time off to attend ante-natal or adoption appointments is welcome, but should be paid and be for a "reasonable" time off, rather than be limited to two blocks of not more than 6.5 hours. It should also apply to all agency workers as both prospective mothers and partners as a day one right.

 

7. The extension of the right to flexible working to all employees is welcome. However, the right to request should be available as a day one right and extended to all workers. Further, the TUC is concerned that the replacement of the statutory procedure with an ACAS Code of Practice will send the signal to employers that accommodating flexible working requests is less important.

 

8. The TUC also supports the introduction of breastfeeding rights at work as well as access to leave for other carers supporting a mother such as a grandparent.

 

Part 6 – Shared Parental Leave and Pay

9. Clauses 87 and 89 of the Bill enable regulations to establish shared parental leave and pay for parents. This will enable a mother to bring her entitlement of 52 weeks maternity leave and 39 weeks pay to an end and convert the remainder into shared parental leave and pay which she or the father/partner can take, provided both parents meet certain qualifying conditions.

 

10. The TUC recognises that shared parental leave and pay will increase choice for some parents and could encourage a fairer sharing of parenting responsibilities. We recognise the benefits this would bring in terms of greater gender equality, better relationships and improved child well-being. We also support the principle of enabling leave to be taken on a more flexible basis, especially by allowing parents to take leave at the same time, unlike the current additional paternity leave entitlement.

 

11. However, there are a number of drawbacks to the shared parental leave and pay scheme set out in the Bill. Firstly, it will not lead to a substantial change in the number of fathers/partners taking time off work to care for children because it lacks sufficient incentives. On the government’s own figures, take-up is only expected to be two to eight percent of eligible fathers. [1]

 

12. There is no reserved period of leave for fathers – International evidence shows that fathers are most likely to take leave that is available solely to them on a ‘use it or lose it’ basis and shared entitlements are still most likely to be used by mothers. [1] The government’s original proposals in its Modern Workplaces consultation had included an additional month’s reserved paid leave for fathers/partners which would have seen take-up rise to between 4 to 13 percent according to the government’s impact assessment. The TUC regrets that this reserved period of leave was dropped. The TUC calls for a reserved period of leave for fathers/partners, perhaps as an extension of the current paternity leave entitlement and in a way that does not reduce the entitlements of the mother. At a minimum, the government should commit to an early review of take-up rates of leave by fathers/partners with a view to introducing a reserved period of leave if predictions of poor take-up prove to be correct.

 

13. Shared parental leave will not be a day one right – The government had originally proposed that shared parental leave would be a day one right and that an equivalent benefit mirroring maternity allowance would be created for those who did not qualify for statutory pay. However, the government has indicated in its current ‘Shared parental leave and pay administrative consultation’ that only fathers/partners with 26 weeks’ service (by the end of the 15th week before the expected week of childbirth (EWC)) and earning more than the lower earnings limit of £109 per week will qualify. This will exclude the low paid, and those on short term contracts, who constitute a growing proportion of the workforce.

 

14. Continued low flat-rate of pay for fathers/partners – As the Impact Assessment shows in countries such as Sweden, Norway, Iceland and Denmark where leave is paid at a rate of 80% of normal earnings or higher, the majority of fathers take some extended leave from the workplace to care for children. In countries with low rates of pay or benefits, less than 10% of fathers take any extended leave. In the UK, qualifying fathers will only be entitled to the low flat-rate of statutory pay (£136.78 a week for 2013/14) which will only increase in line with other benefits by just 1 percent a year until 2016. By far the most common reason for fathers not taking paternity leave around the time of the birth is that they cannot afford to (cited by two-thirds of fathers) and only half of low income fathers took any paternity leave compared to four-fifths of higher paid fathers. [1] The TUC believes that for there to be a significant change in parenting roles and more choice for low income families, the issue of very low pay for those taking time off work to care for children needs to be addressed.

 

15. Secondly, the eligibility criteria for shared parental leave and pay risks creating confusion for both employees and employers which will hinder take up and implementation (proposed ss.75E and 75G in ERA 1996 and proposed ss.171ZU and 171ZW in the SSCBA 1992). For example, a woman who is not employed by her employer for 26 weeks by the 15th week before the end of EWC will qualify for maternity leave and maternity allowance but will not be able to take shared parental leave and pay herself; but her partner/the father of the child will be able to take it if she ends her maternity leave early and he met the service and income criteria. A woman with a self-employed partner may be able to end her maternity leave early and take shared parental leave and pay herself but her partner will not be eligible to take it. And a single mother will not be able to take any shared parental leave and pay despite potentially having another family member who intends to care for the child. The TUC believes the scheme could be made simpler and fairer by making shared parental leave and pay a day one right, creating an allowance equivalent to maternity allowance for those who do not qualify for statutory parental pay and removing other criteria like the requirement to have another person who is economically active with whom they intend to care for a child.

 

16. Thirdly, it is disappointing that shared parental leave and pay will not be as flexible as was first proposed. The leave will only be able to be taken in blocks of at least a week’s duration and only if the employer consents. It was envisaged that one of the real benefits of being able to take leave flexibly would be to enable a period of part-time work, for example, to enable a woman to have a phased return to work. The TUC believes that shared parental leave should be available on a more flexible basis e.g. part time, and that employers should consider requests to take shared parental leave in a reasonable manner (applying the same test as considering a flexible working request).

 

The right of return from leave

17. The right to return from a period of shared parental leave will be worked out in regulations. Currently a parent returning from less than 26 weeks leave has the right to return to the same job. If returning after 26 weeks leave then the parent has the right to return to a suitable alternative position if it is not reasonably practicable for the employer to return them to the same job. This is the so-called "weaker" right of return.

 

18. The TUC believes that the two options currently being considered by the government for the right to return to work following a period of shared parental leave are either too weak or too complicated. The first option provides parents with the right to return to the same job only after an initial period of 26 weeks or less. Any subsequent period of leave, regardless of duration, will attract the weaker right of return. This will be a strong disincentive for parents to take their leave in flexible blocks. The second option provides the right to return to the same job after leave totalling 26 weeks on aggregate. While this option is preferable to the first option, it will be complicated to administer in practice and is still potentially unfair.

 

19. Instead the TUC supports a right to return to the same job regardless of the length or periods of leave taken to care for a child being included in this Bill. This would be simple to administer, encourage fathers to take shared parental leave, and begin to tackle alarming levels of pregnancy discrimination. According to the then Equal Opportunities Commission, around 1 in 14 or 30,000 women lost their jobs as a result of pregnancy in 2005. A recent survey suggests that up to one in seven women do not have a job to return to after leave. [1] Working Families also recently reported ‘high levels of maternity discrimination’ particularly related to losing jobs while on leave. [2] Such a right would not remove the employer’s existing right to restructure the workforce in a redundancy situation, yet strengthen much needed protections for parents returning to work.

 

Part 6 – Improved adoption rights and rights for employees becoming parents via surrogacy

20. The TUC welcomes clauses 91 and 92 which amends ERA 1996 and SSCBA 1992 to provide: statutory rights to leave and pay for those who are prospective adopters through the ‘fostering to adopt’ and ‘concurrent planning’ placements; and to enable employees intending to become parents through surrogacy to access adoption leave and pay and ordinary paternity leave and pay for the first time. They will also be eligible for shared parental leave and pay.

 

21. The TUC also welcomes clause 94 which amends the SSCBA 1992 so that the first six weeks of Statutory Adoption Pay (SAP) are paid at 90% of a person’s normal weekly earnings, which makes SAP equivalent to Statutory Maternity Pay. At present, the whole SAP period is paid at the low flat-rate of £136.78 a week (2013/14).

 

Part 7 – Time off work for ante-natal and adoption appointments

22. Clause 97 introduces a new right for an employee or a qualifying agency worker who is the partner of a pregnant woman or someone intending to become a parent through surrogacy to unpaid time off to accompany the pregnant woman to ante-natal appointments. The time off is limited to two periods of not more than 6.5 hours each.

 

23. The TUC welcomes the new right to time off but is disappointed that the time off is unpaid and limited in length. Complications in pregnancy often require more than one scan and it is important that partners or intended parents are able to attend all of them in such situations. Also for intended parents of a surrogate child the pregnant woman may be some distance away requiring more than 6.5 hours for the appointment and travel to and from it. The TUC believes the right to time off should be paid and for a ‘reasonable’ period of time.

 

24. The TUC also believes that the right to time off should apply to all agency workers as a day one right. The Bill, as currently drafted, extends the right to time off to agency workers (new s.57ZE and s.57ZG). However, only agency workers who qualify as ‘employees’ will have the right to time from day one of an assignment. Agency workers who are ‘workers’ will only qualify for the right to time off if they have completed the 12 week qualifying period for equal treatment under the Agency Worker Regulations 2010 (see new s. 57ZG).

 

25. These provisions mirror the limited rights of pregnant agency workers to paid time off to attend ante natal appointments, introduced in the Agency Worker Regulations 2010. While pregnant agency workers who qualify as ‘employees’ have a right to time off for ante natal appointments from day one of any assignment, those classified as ‘workers’ only qualify for the right after completing the 12 week qualifying period (See s.57ZD of the ERA 2010).

 

26. Therefore the most vulnerable agency workers – i.e. those employed on zero hours contracts, who do not have any guaranteed hours and who can be fired at a moment’s notice, will lose out on the new right to time off to attend ante natal appointments if they have not completed the 12 week qualifying period. Pregnant agency workers in a similar situation already lose out on the right to time off to attend ante-natal appointments. The TUC believes that the basic right to time off to attend ante natal appointments should apply to all pregnant agency workers and partners who are agency workers from day one.

 

27. Clause 98 introduces a right to paid time off for an employee or a qualifying agency worker who is a single adopter or the primary adopter in a couple to attend up to five adoption appointments of no longer than 6.5 hours each. A partner would be entitled to unpaid time off to attend up to two adoption appointments of 6.5 hours each. The TUC welcomes these new rights but again suggests that the limits imposed on them be addressed.

 

Part 8 – Extension of the Right to Request Flexible Working

28. Part 8 of the Bill extends the right to request flexible working from parents and carers to all employees with more than 26 weeks’ service.

 

29. Clause 102 repeals the statutory procedure for dealing with a flexible working request and replaces it with a requirement that an employer must deal with a request in a ‘reasonable manner’ and within three months. A draft ACAS Code of Practice has also been published which includes many of the procedural elements of the statutory procedure but in general and arguably weaker terms.

 

30. The TUC is disappointed that the statutory procedure is being replaced by an ACAS Code of Practice. This will most likely be perceived by some employers as a down-grading of the significance of flexible working, particularly at a time when union officers and representatives are reporting that it is getting harder to access flexible working arrangements, particularly in the public sector, as a result of cuts and austerity. [1]

 

31. The TUC is also disappointed that the 26-week qualifying period remains for the right to request. Many parents and carers, particularly lone parents, find it hard to gain employment because so few jobs are advertised on a part-time or flexible basis from day one. Those jobs that are tend to have much poorer terms and conditions – just 5% of part-time jobs in London and the South East were advertised on a full-time equivalent salary of more than £20,000. [1]

 

32. Agency workers will continue to be excluded from the right to request flexible working (see s.80F(8) of the ERA). The TUC believes that this exemption should be repealed.

 

Related issues

33. Breastfeeding rights at work – the Bill is a good opportunity to provide clear breastfeeding rights in the workplace. The Department of Health currently recommends exclusive breastfeeding for the first six months of a child’s life. The new shared parental leave scheme is intended to give women more choice but for many this choice will be constrained if they cannot continue breastfeeding after they return to work. The Bill should provide a right for women who are breastfeeding their babies with reasonable time off to express milk at work and a suitable place in which to do so.

 

34. Parental leave derived from EU law was increased from 13 weeks to 18 weeks with effect from March 2013. This is as a result of the Parental Leave (EU Directive) Regulations 2013 which implement the revised Parental Leave Directive 2010. This parental leave is currently available to parents of children up to the age of 5 (or 18 if a disabled child). Unless a workforce agreement provides otherwise, a maximum of 4 weeks a year can be taken and the leave may only be taken in blocks of one week. There is currently low take up of this leave and parents will not be able to take the full 18-week entitlement with the current age limit and the limit on how much leave can be taken a year. The government has committed to increase the upper age limit to 18 at the same time as the new shared parental leave scheme takes effect in 2015. The TUC believes this increase in the upper age limit could have happened sooner and as part of the 2013 Regulations. Take up for this leave would also be improved if the leave could be taken on a daily rather than weekly basis.

 

35. Access to leave for other carers supporting a mother – in some circumstances it will be beneficial for a mother to be able to transfer some of her maternity leave to someone other than a partner. This could be the case where a single mother is struggling to cope with a new child and a grandparent or other kinship carer could assist if they had access to some leave and pay.

 

April 2013

 

[1] BIS (February 2013) Modern Workplaces: Shared Parental Leave and Pay – Administrative Consultation and Impact Assessment. See paragraph 104 www.gov.uk/government/uploads/system/uploads/attachment_data/file/110692/13-651-modern-workplaces-shared-parental-leave-and-pay-impact-assessment2.pdf

[1] www.leavenetwork.org/fileadmin/Leavenetwork/Annual_reviews/2012_annual_review.pdf

[1] Maternity and Paternity Rights and Women Returners Survey 2009/10

[1] www.slatergordon.co.uk/media-centre/press-releases/2013/03/no-mothers-day-celebration-for-women-returning-from-maternity-leave/

[2] www.workingfamilies.org.uk/articles/pdf/news/99

[1] Three in 10 workplace representatives said getting access to or maintaining flexible working arrangements had become harder, while only one in ten said it had become easier. See TUC Equality Audit 2012 , page 17 .

[1] http://www.jrf.org.uk/sites/files/jrf/part-time-recruitment-full.pdf

Prepared 19th April 2013