According to the Equal Opportunities Commission, 52% of men and 48% of women say they want to work more flexibly and 6.5 million people in the UK could be using their skills more fully if greater flexible working was available. The suggestion is that rigid models of work are driving highly qualified workers into jobs below their skill level in order for them to have a life outside of work. It is against this cultural backround that the Department of Trade and Industry issued a consultation paper in February 2005 on work and family life and this culminated in the Work and Families Act 2006.
Many provisions of the new Work and Families Act will take effect from 1st April 2007. Whilst the new Act has been welcomed by family friendly charities and organisations, there is a concern amongst smaller employers that they will face greater difficulty in complying with the law. They have concerns about the financial burden of employees on parental leave, finding cover for them and satisfying flexible working arrangements.
The Act extends Statutory Maternity Pay, Maternity Allowance and Statutory Adoption Pay to 39 weeks for women or adopters whose babies are due or adopted after 1st April 2007. Although these payments are met by the taxpayer, many employers provide for enhanced weekly payments either contractually or in policies. They may feel additional pressure to extend the length of time top up payments are made under their schemes. Employers will have to review their policies, employment contracts and procedures to ensure compatability with the Act's provisions.
Currently, employees with 26 weeks' continuous service by the beginning of the 14th week before the expected week of childbirth or date of adoption are entitled to an additional 26 weeks' leave. The Act removes the length of service requirement for this additional leave, so that any employee whose baby is due or adopted after 1st April 2007 will be entitled to extra leave. In other words, any individual – regardless of how long they have worked for the employer – could apply for this extra leave and be off work for up to one year. This broadening of the eligibility for additonal maternity and adoption leave will place a heavier burden on smaller employers faced with the prolonged absence of key personnel.
From 6th April 2007, employees who care for adults will have the right to request flexible working. At present only parents of children under the age of 6 or disabled children under the age of 18 can request flexible working. This is another example of the broadening of family friendly legislation. According to the Equal Opportunities Commission's research, this could affect 4.4 million carers of working age in the UK. Employers will need to have justifiable business reasons to refuse a request for flexible working and this will vary according to the size of the organisation and resources available to it.
There are certain aspects of the 2006 Act that are more welcome for employers. If an employee on maternity leave wishes to change her return to work date, the Act doubles the amount of notice required from 4 weeks to 8 weeks. This will enable employers to be provided with advance warning of an early return and to manage staffing levels accordingly.
Perhaps the most welcome introduction for employers is that of "keeping in touch" days. This enables mothers or adopters to return to work, if they wish, for up to 10 working days without losing statutory pay for that period. The employer is then able to maintain communication and update the employee on any changes in the workplace or provide necessary training. This will help to reduce the isolation that employees on leave can feel and assist in embracing them back into the workforce at the end of maternity or adoption leave.
Clearly there is a balancing act between family friendly legislation and the financial burden placed on employers in complying with the legislation. It is to be hoped that the new law reduces employees trading down or dropping out to achieve a better work-life balance as families develop and enables a more motivated, engaged and skilled workforce to meet commercial demands.
Sheila Gunn is a partner specialising in employment law with UK law firm Shepherd and Wedderburn. 0141 566 8555