Can ‘Family Friendly’ be ‘Company Friendly’?

Since April 2003, a large number of ‘family friendly’ policies have come into force and many clients have expressed concern about the implications of these policies.

Maternity

Who Is Entitled to What?

The length of Ordinary Maternity Leave (“OML”) to which all women will be entitled, is 26 weeks. This is irrespective of the employee's length of employment.

Women who have completed 26 weeks' continuous service at the beginning of the 14th week before the expected week of childbirth (“EWC”) will also be entitled to Additional Maternity Leave (“AML”). AML will commence immediately after OML for a further 26 weeks. Consequently, the maximum amount of maternity leave that may now be taken is 52 weeks.

Statutory Maternity Pay

Provided an employee qualifies for Statutory Maternity Pay (“SMP”) by having 26 weeks' service at the 15th week before EWC, she will be entitled to receive SMP for the full 26 weeks of OML.

SMP currently amounts to 90% of the employee's average weekly salary for the first 6 weeks of OML, and thereafter the lesser of £102.80 per week or 90% of average weekly earnings for the remaining 20 weeks. Tax and NI contributions will be deducted from SMP.

Returning to work from OML

An employee has the right to return to the same job in which she was employed before her absence on return from OML. This includes the right to return to the same position of seniority, with pension and similar rights intact.

Returning to work from AML

On return from AML, an employee will have the right to return to the same job, although if it is not reasonably practicable for the employer to reinstate her to her previous job, she is entitled to an alternative position on terms and conditions which are no less favourable than her previous job. An employee returning from AML is also entitled to benefit from any general improvements to rates of pay or other terms and conditions which may have been introduced during her absence.

Adoption Leave and Pay

Statutory adoption leave and pay is available to employees where an approved adoption agency notifies the adopter of a match with a child in the UK.

Length of Adoption Leave

Adopters will be entitled to up to 26 weeks’ OAL (Ordinary Adoption Leave) followed automatically and immediately by 26 weeks AAL (Additional Adoption Leave).

Leave may commence either from:

1. the date of the child’s placement (whether this is earlier or later than expected),
or
2. from a fixed date which can be up to 14 days before the expected date of placement.

Leave can start on any day of the week.

Only one period of leave will be available to one of the adoptive parents, and the same will apply where more than one child is placed for adoption as part of the same arrangement.

Statutory Adoption Pay (“SAP”)

During OAL an employee is entitled to SAP. During AAL there is no entitlement to SAP.

The rate of SAP is currently the lesser of £102.80 a week or 90% of average weekly earnings. This applies for the whole OAL period.

Returning to work after Adoption Leave

The rights to return to work following OAL and AAL are the same as for those employees returning from maternity leave.

Paternity Leave and Pay

Who Qualifies?

In order to be eligible for paternity leave and pay, employees must:

1. have or expect to have responsibility for the child’s upbringing;
2. be the biological father of the child or the mother’s husband or partner (including a same sex partner) or the adopter’s spouse or partner; and
3. have worked continuously for their employer for 26 weeks at the 15th week before the baby is due (or when they are notified of a match with a child).

Length of Paternity Leave

Eligible employees may choose to take either one week or two consecutive weeks’ paternity leave; not odd days here and there. They cannot therefore elect to take two separate weeks’ leave which are not consecutive.

An eligible employee may choose to commence this leave either:

1. from the date of the child’s birth or placement for adoption (whether this is earlier or later than expected); or
2. at a later date provided that it is completed within 56 days of the actual birth or adoption.

Only one period of leave will be available to employees irrespective of whether more than one child is born as the result of the same pregnancy or adopted.

Statutory Paternity Pay (“SPP”)

During paternity leave, employees will be entitled to SPP at the same rate as SMP. This is currently the lesser of £102.80 a week or 90% of average weekly earnings.

Returning to work after Paternity Leave

Employees will be entitled to return to the same job following paternity leave.

Flexible Working arrangements

Contrary to popular belief, these Regulations do not provide an automatic right for an employee to have a flexible working arrangement. There will often be circumstances when an employer is unable to accommodate an employee’s desired work pattern. The main objective of the legislation is to encourage employers to properly consider such requests.

Who is entitled to apply?

In order to make a request, an individual must:

• be an employee (agency workers are expressly excluded)
• be the mother, father, adopter, guardian or foster parent of a child under six, or under 18 in the case of a disabled child; or be married to or the partner of such a person and be living with the child. Partner will include those of the same sex as well as opposite sex.
• have been employed continuously for 26 weeks at the date the application is made
• make the application no later than two weeks before the child’s sixth birthday or 18th birthday in the case of a disabled child
• have or expect to have responsibility for the child’s upbringing
• be making the application to enable them to care for the child

The Procedure

The application must be made in writing and be dated; it must set out the working pattern desired, and that it is an application for a flexible working arrangement. It must also confirm that the employee is responsible for the child; state the date from which they wish the variation to the terms and conditions of employment to take effect and provide the dates of any previous applications. The employer must then consider the request by following a specific procedure.

Grounds for refusing a request

If an employer refuses to allow an application for flexible working, the refusal must satisfy at least one of the grounds provided for in the Regulations.

What can we do for you?

All of these policies are legal entitlements. The legislation is complex in some areas and we can explain this to you and its implications. We try to encourage our clients to embrace these policies and make them work in the best way for their companies. We can help you devise policies in line with the legislation that will work for you and your business.

Synergy Employment Law