Promises of flexibility, childcare reform and better parental leave – trick or treat?

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The pandemic has prompted greater focus on, and demand for, flexibility for workers and better rights for working families. Sadly, statistics show that the number of childcare providers is diminishing, the gender pay gap increased in 2021, and with the cost-of-living crisis, more parents (usually women) are making the difficult decision to sacrifice career and leave work because of exorbitant childcare costs or inflexible employers.

In response to these issues, on 29 October 2022, Pregnant then Screwed’s the ‘March of Mummies’ will take place at various cities across the UK. The primary purpose of the march is to raise awareness of parental rights.

March of the Mummies

The first March of Mummies took place in 2017, across 6 cities in the UK and in California. At that time, the march focused on demanding recognition and action for working mums and dads.

This year the demonstration is aimed at raising awareness and asking the government to prioritise flexible working, childcare and parental leave.

What are the statistics?

Pregnant then Screwed highlight worrying statistics which have become more concerning during the pandemic. They are that:

the UK has the second most expensive childcare in the world;
statutory maternity pay is the third worst in Europe;
statutory paternity leave is the least generous in Europe;
3 out of 4 job advertisements fail to mention flexible working when 82% of British workers want flexible working; and
mothers face a 45% pay penalty in the 6 years after they have given birth.

What types of leave are available to parents?

The UK offers maternity and paternity leave as well as shared parental leave. There are equivalent rights (in respect of maternity, paternity and shared parental leave) for those adopting. We have summarised the types of leave below.

Statutory maternity leave

Statutory maternity leave is comprised of 26 weeks’ of ordinary maternity leave, and 26 weeks of additional maternity leave.

Only employees who have 26 weeks’ continuous service and earn on average at least £123 per week, are entitled to be paid over this period under the statutory scheme.

Under the UK scheme, qualifying employees are entitled to 90% of their average weekly earnings (before tax) for the first 6 weeks and then either the statutory minimum (currently £156.66) or 90% of their average weekly earnings (whichever is lower) for the next 33 weeks. Some employers pay enhanced maternity pay.

In comparison, other European and Scandinavian countries such as Bulgaria and Norway are more generous. For example, mothers in Bulgaria receive 90% of their salary (subject to a social security cap) for up to 58 weeks.

Paternity leave

Statutory paternity leave is comprised of either 1 or 2 weeks which must be taken by the employee in one block usually between the date on which the child is born and 56 days after that date. Statutory paternity pay is equal to either the statutory minimum (currently £156.66 per week) or 90% of the employees’ average weekly earnings (whichever is lower). Some employers pay enhanced paternity pay, but these are few and far between. Other countries offer far more favourable paternity leave, such as Lithuania where fathers are entitled to 30 days of paid paternity leave at a rate of approximately 77.5% of their pay (subject to a cap).

Shared parental leave

Shared parental leave is available to parents to share a total amount of 50 weeks leave and up to 37 weeks pay, but this type of leave can only be taken in the first year following the birth of the child. Those eligible may claim share parental pay of up to 39 weeks, less any weeks of statutory maternity pay claimed by their partner. The current weekly rate for shared parental pay is £156.66 or 90% of one’s average weekly earnings (whichever is the lower).

Whilst some companies offer their employees enhanced packages, that is not always the case. Some employers have punitive payback clauses or additional eligibility criteria that put enhanced entitlement out of reach. Again, the UK falls behind other countries who offer significantly more attractive policies, including Norway who offer a shared parental benefit of either 49 weeks at full pay or 59 weeks at 80% pay.

Flexibility

Employees who have at least 26 weeks’ continuous employment may make a request to work flexibly. It remains within the employer’s gift to decide whether to approve the request for flexible working, and they may reject the request based on one or more of the following eight reasons:

The burden of additional costs.
Detrimental effect on ability to meet customer demand.
Inability to reorganise work among existing staff.
Inability to recruit additional staff.
Detrimental impact on quality.
Detrimental impact on performance.
Insufficiency of work during the periods the employee proposes to work.
Planned structural changes.

Despite the effects of the pandemic which have led many employers to allow flexible and hybrid working for a period of time, it seems that there is a push for employees to return to the office, and/or to maintain ‘normal’ 9-5 working hours.

Proposals for reform

The harsh reality is that many are struggling to deal with balancing work and family life after having children. Whether it be the lack of flexibility or the financial pressures as a result of childcare, many (mostly women) are either not returning to work or are quitting their jobs to stay home to care for their children. For that reason, it is not surprising that many have called on the government to address the inadequacies in the current policies, and as a result there have been certain proposals for change or government consultations on some of these issues.

Flexible working – a day-one right

In September 2021, a government consultation was launched proposing making flexible working the default position and a day-one right. The day-one right being the right to request flexibility, not the right to flexible working itself. This consultation closed in December 2021 and we are yet to receive the outcome from the government. If any changes are going to be made it is more likely that we will see this in the forthcoming Employment Bill (which also appears to have taken a backseat).

Hybrid working

Following the effects of the pandemic and the sudden change for many employers to switch to hybrid and remote working, in November 2021, the House of Commons Library published the Flexible working; Remote and Hybrid Work briefing paper. This paper considered the legal position and guidance as regards flexible working and highlighted some of the trends observed during periods of lockdown, and what these trends could mean for the future of working. Guidance has also been published regarding hybrid working, which supplements the ACAS guidance on the same topic which you can read here.

A four-day working week

Campaigners are also pushing for a four-day working week for employees, instead of five, saying it increases productivity and morale. This is being trialled across the UK from June this year, as part of a program run collaboratively between the UK 4 Day Week Campaign, thinktank Autonomy and researchers from Boston College, and Oxford and Cambridge universities. This remains an initiative driven by select individual employers only who have agreed to participate and it is yet to be seen whether there will be movement towards a wider policy decision on the matter.

Equalising shared parental leave and maternity leave

Some believe shared parental leave and maternity leave should be equalised, recognising that supporting both parents equally is more likely to lead to true equality when it comes to childcare. This would require employers to offer the same level of enhanced pay to those on maternity leave and shared parental leave. All too often we women stay at home for longer periods as their partner taking shared parental leave receives only the statutory amount for shared parental pay. If the default position was more favourable, we may see more employers offering enhanced pay to parents.

How can you get involved?

If you would like to lend support with your feet, the details of the marches which will take place nationwide are on the Pregnant then Screwed website.

For employers, this is a great opportunity for you to reflect, take stock of your internal policies and think about whether there is room to improve what you offer to your workforce in terms of improved parental rights, enhanced pay and flexibility.

Brahams Dutt Badrick French LLP is a leading law firm based at Bank in the City of London specialising in employment law. If you would like to discuss any issues relating to the content of this article, please contact Blair Wassman (blairwassman@bdbf.co.uk) or your usual BDBF contact.

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Pregnant at work? Your top ten questions on workplace rights answered

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BDBF Partner, Paula Chan and Managing Associate, Emily Plosker regularly advise senior professional women, including employees, LLP members and partners on their workplace and employment rights during pregnancy. Together they have decades of experience representing pregnant women and mothers, helping them to enforce their employment rights. As mothers of young children themselves, they bring the perspective of their own experience of being pregnant at work. In this article, they answer the top ten questions asked by women who are pregnant at work or planning a pregnancy.

1. When should I tell my employer that I am pregnant?

The law does not require you to tell your employer you are pregnant until the 15th week before the week your baby is due (referred to as the ‘expected week of childbirth’), which is when you around are 25 weeks’ pregnant. We recommend telling your employer early as it is only once your employer has knowledge of your pregnancy, that you are protected under various pieces of legislation.

For a long time, there has been a “12-week rule” about when to tell others that you are pregnant. However, in our experience, this is a bit outdated, and many women now feel comfortable telling people before the 12-week scan, particularly at a time when miscarriage and fertility treatment are finally becoming less ‘taboo’.

Ultimately, it is your body and your pregnancy, and you need to feel comfortable with whatever decision you make.

2. Should I tell my employer I am planning a pregnancy or undergoing fertility treatment?

Whilst there is no protection against pregnancy discrimination unless you are pregnant, you may have a claim for sex discrimination if you are treated less favourably because you are planning a pregnancy or undergoing fertility treatment.

If you are planning a pregnancy, it may be a good idea to notify your employer especially if the process of becoming pregnant is causing you stress or affecting your work. It may also be sensible to speak to your employer if your journey involves fertility treatment, such as IVF which may involve the need for time off work and/or invasive medical treatment.

If your employer knows what you are going through, they are better placed to support you, and in our experience good employers will offer support. Some employers also have fertility policies which may entitle you to paid time off work to seek treatment and, in some cases, offer financial support for fertility treatment such as IVF.

3. What are my rights at work when I am pregnant?

When you are pregnant at work you will have some or all of the following rights:

Paid time off for ante natal care.
A workplace risk assessment.
Maternity leave (employees only).
Statutory maternity pay or maternity allowance (LLP members and partners are not entitled to statutory maternity pay but may be entitled to maternity allowance).
Shared parental leave (available to employees only where the co-parent meets certain eligibility criteria).
Statutory shared parental pay (employees only).
Protection against unfair treatment (usually referred to as pregnancy detriment) and dismissal. These rights only apply to employees but there is separate provision which protect agency workers.
Protection against discrimination. This right to protection against discrimination extends to workers, as well as employees. This means, for example, that partners and LLP members are protected against discrimination.

4. What are my rights at work in relation to ante natal appointments?

When you are pregnant you will normally be asked to attend an ante natal appointment when you are around 8 weeks’ pregnant (usually called the “booking appointment”) and scans at around 12 and 20 weeks. After the first antenatal appointment, you will need to show your employer evidence of your pregnancy (MAT B1 form) and the appointment card (if requested).

Pregnant employees and agency workers have the right to take paid time off to attend antenatal appointments (i.e. scans, medical appointments but also ante-natal or parenting classes if recommended by your doctor). Certain employees and workers have the right to take unpaid time off to accompany a woman to an antenatal appointment (subject to certain criteria).

Your employer is only able to refuse time off for you to attend an antenatal appointment where it is reasonable to refuse. However, there is no guidance in the legislation or case law telling us what amounts to a reasonable refusal.. A refusal of a request to take time off without a good reason is more likely to be reasonable, when compared to a medically advised need to attend an urgent scan due to a concern about your baby (such refusal would never be reasonable).

Where there has been an unreasonable refusal, you may have a claim in the Employment Tribunal either in relation to the refusal or a broader discrimination claim.

5. When should employers carry out a pregnancy risk assessment?

All employers have a legal duty to protect the health and safety of their employees and any persons who are affected by the employer’s work or business. It is a legal requirement for all workplace risk assessments to include risks to female workers of childbearing age, even if there are no pregnant employees at the time of the risk assessment.

Once you have told your employer about your pregnancy, they should immediately check their existing workplace risk assessment to ensure that it is still valid and does not require any significant changes (albeit your employer should be doing this at regular intervals in any event)).

Where the work is of a kind that could cause a special risk to a pregnant employee, employers have a legal duty to: (I) assess workplace risks to new or expectant mothers or their babies; (ii) alter the employee’s working conditions of hours of work to avoid any significant risk; or (iii) in the alternative, to offer suitable alternative work on the same terms; or (iv) if there is no suitable alternative work, to suspend the employee on full pay.

The Health and Safety Executive (HSE) has a guide for protecting new and expectant mothers at work. HSE sets out a variety risks of common risks which include work-related stress and long hours.

If an employer fails to carry out a risk assessment, or ignores any of its findings, this could give rise to an Employment Tribunal claim for maternity, pregnancy discrimination, or sex discrimination in the case of breastfeeding mothers.

6. Can I be made redundant whilst I am pregnant?

Whilst it is unlawful for your employer to make you redundant because you are pregnant, it can dismiss you if you are genuinely redundant. If you are made redundant because you are pregnant, you will have various potential Employment Tribunal claims, including a claim for automatic unfair dismissal and pregnancy discrimination. You can claim uncapped compensation at the Employment Tribunal if you have this kind of claim.

Women selected for redundancy whilst on maternity leave have special legal protection. They have the right of first refusal to any suitable alternative vacancies, without any competitive process or the need to attend an interview. This means mothers on maternity leave jump the queue ahead of other potentially redundant employees. There are Employment Tribunal cases in which a more senior and better paid role was found to be a suitable alternative rolethat should have been offered to an employee on maternity leave without any competitive process.

There are plans to extend this legal protection to cover the pregnancy period and six months after the return from maternity leave, however, it is not clear when these changes will come into force.

Whilst LLP members and partners do not have the same statutory protection against unfair dismissal or redundancy rights, it is unlawful to terminate a LLP member’s membership or a partner’s partnership because they are pregnant.

7. When should I start my maternity leave?

Some women like to start maternity leave early in order to have time to prepare for the baby’s arrival or because they start feeling more tired or unwell closer to their due date. Others prefer to work as close to their due date as possible in order to maximise time off on maternity leave with their baby. Whilst in most cases this will be a matter of personal choice, if you are an employee, you cannot start maternity leave before the 11th week before the expected week of childbirth (which is when you are around 29 weeks’ pregnant).

There two exceptions to this rule. First, if you are absent from work for a pregnancy-related reason after the fourth week before the expected week of childbirth, but before the planned start date for maternity leave, the maternity leave will begin automatically on the day after the first day of absence. Second, if your baby is born early your maternity leave will start the day after your baby is born.

The Governments intends to introduce the right to 12 weeks’ neonatal leave and pay for parents of babies under 28 days who spend more than 7 days in hospital. However, this legislation is not expected to be introduced until April 2023. Until that time, some employers have already extended their own maternity leave policies to include neonatal leave, so that parents of premature babies, who will often have longer periods of time in hospital, do not unfairly exhaust their maternity or paternity leave. It is, therefore, worth checking whether your employer has a similar policy in place.

8. How much maternity leave am I entitled to?

Employees are entitled to up to 52 weeks’ maternity leave. The first 26 weeks are referred to as “Ordinary Maternity Leave” or OML. The second 26 weeks are referred to as “Additional Maternity Leave” or AML. Employees continue to accrue paid holiday during their maternity leave, and some employees choose to add their accrued holiday entitlement to the end of their maternity leave to extend the period of time off before returning to work (though this extended period will be a period of annual leave and not maternity leave).

Employees may also be entitled to exchange up to 50 weeks’ worth of their maternity leave for shared parental leave, which is a form or leave that may be shared with a co-parent.

Employees with at least one year’s service are also entitled to up to 18 weeks’ unpaid leave for each child up to the age of 18, for the purposes of caring for that child. The benefit of taking parental leave (even though it is unpaid) is that you have the benefit of certain contractual rights during that time and also have the right to return to the same job (or suitable alternative job).

LLP members and partners do not have the right to statutory maternity leave or parental leave but their entitlement to take time off (often paid) is usually covered in the LLP agreement or partnership deed.

9. What is my entitlement to maternity pay?

Employees with 26 weeks’ continuous service when they reach the end of the 15th week before the expected week of childbirth are entitled to Statutory Maternity Pay (SMP). This is:

90% of your average weekly earnings (before tax) for 6 weeks; and
£156.66 or 90% of average weekly earnings (whichever is lower) for the next 33 weeks (the rate of pay increases in April each year).

You can read more about this here.

You may also have an entitlement to enhanced company maternity pay. This might mean you are entitled to a period of full pay, or a combination of full pay and half pay for example. Details of any enhanced entitlement can usually be found in an employer’s maternity policy, employee handbook or the contract of employment itself. Many enhanced pay policies are premised on the employee returning to work for a certain period of time after maternity leave.

LLP members, partners and other workers are not entitled to Statutory Maternity Pay, but they may be entitled to Maternity Allowance (MA) either £156.66 a week or 90% of your average weekly earnings (whichever is less) for 39 weeks. If you are self-employed, you may be able to receive between £27 to £156.66 a week for 39 weeks depending on how many Class 2 National Insurance contributions you have made in the 66 weeks before the baby is due. You can read more about this here.

10. What can I do if I have been discriminated against at work during pregnancy?

There are a number of things you do in this scenario. Deciding on the right strategy will depend on a number of factors, including the strength of your case and the outcome you are looking to achieve. What is right for one person, may not be right for another.

If ultimately, you feel that you want to stay in the business and that the discriminatory behaviour you’re experiencing is something you feel can be resolved, then raising a grievance and starting Employment Tribunal proceedings may not be the right step. That is because it can be difficult to maintain the employment (or partnership) relationship if there is a dispute, whether internal or external, or both.

If the discriminatory behaviour you are experiencing is having a significant impact on your career prospects because of your pregnancy or maternity leave (such as not being promoted or you have not received the expected level of bonus) or your health or that of your baby, you may wish to take more formal action. The first step for employees will normally include raising a formal grievance. Not only will this put on the record the complaints you have and will require your employer to take action, but you will also be protected going forward from any retaliatory treatment (known as a victimisation claim). There may be a different complaints process for partners set out in the LLP agreement or partnership deed.

It is important that either before or at the point when you submit a grievance or formal complaint that you keep a record of the discriminatory treatment you are experiencing and ensure that any evidence is preserved (e.g. by ensuring emails are not permanently deleted). This will help form the basis of your grievance and any Employment Tribunal claim you may want to issue in the future.

It is important to note that there are short time limits for bringing discrimination claims in the Employment Tribunal. Broadly, you will have three months less one day of the discriminatory treatment (or the last incident if there is a continuing course of discriminatory treatment) to start a claim, which requires you to notify ACAS and submit an ACAS early conciliation form. Whilst the government has said that it is looking into increasing the time limit to 6 months, this may not come into force as law for some time. You can read more about ACAS Early Conciliation here.

Given the complexities involved in raising complaints of discrimination, we always recommend seeking legal advice as early as possible, to ensure that your position is protected, you have someone fighting your corner if things become difficult, and to give you the best options going forward.

BDBF is a law firm based at Bank in the City of London specialising in employment law. If you would like to discuss your rights during pregnancy or maternity leave, pregnancy or maternity discrimination or any issues relating to the content of this article, please contact employment lawyers Paula Chan (paulachan@bdbf.co.uk) or Emily Plosker (emilyplosker@bdbf.co.uk), or your usual BDBF contact.

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Is it discriminatory to pay a man on shared parental leave less than a woman on adoption leave?

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Is it discriminatory to pay a man on shared parental leave less than a woman on adoption leave?

In Price v Powys County Council, the Employment Appeal Tribunal (EAT) has determined that it was not directly discriminatory to enhance pay to a female employee on adoption leave and not to enhance statutory pay for a male employee on shared parental leave.

What does the law say?

Direct sex discrimination occurs where someone treats person A less favourably than person B, because of person A’s sex. If employees wish to claim direct sex discrimination, they must demonstrate that they have been treated less favourably than a real or hypothetical comparator. For these purposes, a comparator must be someone of the opposite sex whose circumstances are not materially different to the complainant. A material difference is one that is significant and relevant.

Where employees adopt a child, they may be entitled to take adoption leave and receive statutory adoption pay. Primary adopters will be entitled to take up to 52 weeks’ leave, which may begin before or after the adoption placement. They may also qualify for up to 39 weeks’ statutory adoption pay. The primary adopter’s partner or spouse may qualify for up to 2 weeks’ paternity leave and pay.

Birth and adoptive parents may be entitled to take shared parental leave and receive statutory shared parental pay. This will only be available where the birth mother/primary adopter has curtailed the maternity/adoption leave and pay. Up to 50 weeks’ shared parental leave and 37 weeks’ statutory shared parental pay may be shared between the parents in blocks of their choosing (subject to certain limits). Shared parental leave may only be taken after the birth or adoption placement has begun.

What happened in this case?

Mr Price worked for Powys County Council. He applied to take shared parental leave following the birth of his first child. When he asked how much he would be paid during leave, the Council confirmed that he would receive statutory shared parental pay only. By contrast, the Council enhanced both maternity and adoption pay. Because of this, Mr Price decided that he would not take shared parental leave after all.

He went on to claim direct sex discrimination, arguing that he should receive the same pay as female colleagues taking other forms of leave. He identified two comparators:

a woman on maternity leave receiving enhanced pay; and
a woman on adoption leave receiving enhanced pay.

He argued that he was entitled to compare himself to these women because all forms of leave served the same purpose, namely the facilitation of childcare.

What was decided?

In Ali v Capita Customer Management Ltd the Court of Appeal ruled that a man taking shared parental leave was not entitled to compare himself to a woman on maternity leave as their circumstances were materially different. The Court said that the primary purpose of maternity leave was for the health and safety of the birth mother and not the facilitation of childcare. Accordingly, the EAT held that Mr Price could not compare himself to a woman on maternity leave.

In relation to the second comparator (the woman on adoption leave), the EAT decided that adoption leave and shared parental leave were similar in that they both had the underlying purpose of facilitating childcare. However, there were also fundamental differences. The predominant purpose of adoption leave was to allow adoptive parents to prepare a safe environment for the child and secure the parental bond. As a result, Mr Price and the female comparator’s circumstances were materially different. For that reason, a person taking shared parental leave was not in a directly comparable position with a person of the opposite sex taking adoption leave. Here, the right comparator would have been a woman taking shared parental leave, who would also have been paid statutory shared parental pay only.

What does this mean for employers?

This decision is helpful to employers who enhance pay for adoption leave but not shared parental leave. That difference in approach will not be directly discriminatory. However, employers should note that it remains possible that such a claim might succeed if framed as an equal pay claim. In the case of Hextall v Chief Constable of Leicestershire Police, the Court of Appeal held that a man being paid statutory shared parental pay only could have compared himself to a woman being paid enhanced maternity pay for the purposes of an equal pay claim. However, in that case, the Court said the equal pay claim was bound to fail because claims are excluded where more favourable terms relate to special treatment for women in connection with pregnancy or childbirth. However, that exclusion would not apply where a man sought to compare himself to a woman taking adoption leave.

This case also highlights the wider issue that many parents remain reluctant to take shared parental leave because employers tend not to offer enhanced pay. The charity, Maternity Action, estimates that the take up rate stands at between 3% to 4% among eligible couples. Indeed, in the last few days, a group of organisations including the TUC, the National Childbirth Trust and the Royal College of Midwives have described the shared parental leave system as a “deeply flawed and chronically failing policy”. They have called for it to be scrapped and replaced with a period of nom-transferable paid leave for both mothers and fathers.

Price v Powys County Council

If you would like to discuss any issues arising out of this decision please contact Blair Wassman (blairwassman@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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A closer look at the new right to parental bereavement leave

Employment Law News

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A closer look at the new right to parental bereavement leave

From 6 April 2020 a new law, known as “Jack’s Law”, was introduced which gives parents the right to take 2 weeks’ bereavement leave following the death of a child. In this article, we take a closer look at the new right and the steps employers need to take.

Why has parental bereavement leave been introduced?

Jack’s Law was introduced in memory of Jack Herd, who tragically drowned in 2010, aged 23 months. It is the result of a campaign led by his mother, Lucy, to give bereaved parents a guaranteed right to a period of leave following the death of their child.

Prior to 6 April 2020, UK employees did not have a specific statutory right to take time off following the death of a child. Whilst employees had a right to take a reasonable amount of time off work to take “action which is necessary… as a consequence of the death of a dependant”, there was no statutory right to be paid during this time. Further, the caselaw in this area made it clear that the purpose of dependant’s leave in this context was to deal with practical matters, such as arranging a funeral, not to grieve.

Whilst some employers went further and allowed employees to take a period of compassionate leave following a bereavement, this was a matter of discretion for the employer. Beyond this, if an employee wished to take time off work to grieve following the death of a child, they would have to take either sick leave, annual leave or agree a period of unpaid leave with their employer.

The new right to take parental bereavement leave (PBL) and, in some circumstances, receive statutory parental bereavement pay (SPBP), was introduced on 6 April 2020 and is set out in the Parental Bereavement (Leave and Pay) Act 2018 and the Parental Bereavement Leave Regulations 2020. The Government has also published brief guidance on the new right. PBL does not affect a bereaved employee’s right to take any other relevant forms of leave, such as dependant’s leave or sick leave.

Who is eligible to take PBL?

Employed parents who lose a child aged under 18, including through a stillbirth after 24 weeks, are entitled to take up to 2 weeks’ PBL. The right to take PBL is only available to employees, not to other workers, self-employed contractors or agency workers (unless they are employees of the employment business). It is a Day 1 right, meaning employees do not need to have a specified period of service with their employer to be eligible to take PBL (although there is a length of service requirement in relation to pay, see below).

Whether an employee is a “bereaved parent” within the meaning of the legislation is determined with reference to their relationship to the deceased child. It is a wide-ranging definition and covers the following categories of parent:

a child’s natural or adoptive parent, including employees who have become parents following surrogacy or other forms of IVF treatment;
the natural parent of a child that has been adopted, where there is a court order authorising the child to have contact with the natural parent;
an individual with whom the child has been placed for adoption by a British adoption agency, or under a fostering for adoption scheme, provided the placement has not been terminated;
in circumstances where a child has entered Great Britain from overseas for the purposes of adoption, a person living with that child and who intends to adopt them and has received official notification from the British authorities that they are eligible to adopt;
an intended parent under a surrogacy arrangement where it was expected that the court would make a parental order under the Human Fertilisation and Embryology Act 2008;
a “parent in fact”, being someone in whose home the child was living and who had day-to-day responsibility for the child’s care for at least the 4 weeks prior to death, provided that the child’s parent or someone with parental responsibility was not also living in the home; and
the partner of any of the above, being a person living in an enduring family relationship with another person and their child, and who is not that person’s parent (including adoptive parents), grandparent, sibling (including a half-sibling), aunt or uncle (including half-aunts and uncles). The purpose of this category is to include stepparents.

How do employees take PBL?

The leave can be taken as a single 2-week block or as separate 1-week blocks and can be taken any time up to 56 weeks after the date of the child’s death or stillbirth. The reason for the 56-week period is to allow parents to take their second week of leave over the first anniversary of the death if they wish. In circumstances where more than one child has died, or been stillborn after 24 weeks, a parent can take a separate period of leave for each child.

In order to take PBL, an employee needs to notify their employer of:

the date of their child’s death or stillbirth;
the date on which they intend their PBL to start; and
whether they intend to take 1 or 2 weeks’ leave.

Whilst the legislation does not require this notice to be given in writing, it would be sensible for employers to ask for notice to be given in writing so that there is a record. The employee does not need to provide evidence of the death or stillbirth.

How much notice the employee is required to give depends on when they would like PBL to start. If the employee intends to take PBL within the 8 weeks following their child’s death, then they only need to notify their employer before the first day of leave. If, however, they wish to take PBL after the first 8 weeks (but before the end of the 56-week period) then they need to provide 7 days’ notice. The legislation allows an employee to change the dates of their PBL by giving the same period of notice. However, once a period of PBL has started, it cannot be cancelled.

Who is eligible to be paid SPBP?

Unlike the right to take PBL, the statutory right for a bereaved parent (as defined above) to be paid during this time is not a Day 1 employment right. Instead, the employee must have:

been in the employer’s employment for a continuous period of at least 26 weeks, ending with the week prior to the week in which the child died or was stillborn;
remained in that employment until at least the date on which the child died or was stillborn; and
received normal weekly earnings in the 8 weeks before the relevant week that was not less than the lower earnings limit in force at the end of the relevant week. For the 2020/2021 tax year, the lower earnings limit is £120 per week.

If an employee has more than one employer then they can claim SPBP from each employer, provided they meet the eligibility criteria in respect of each employer.

How do employees claim SPBP?

In order to claim SPBP an employee must notify their employer that they are eligible and intend to claim SPBP. This should be done either before the start of their SBL period, or no later than 28 days after the first day of leave.

The employee’s notice must contain the following information:

their name;
the date of death of the child; and
a declaration that they satisfy the definition of bereaved parent.

How much will eligible employees be paid?

The rate of SPBP is the same as statutory maternity, paternity, adoption and shared parental leave. This is the lower of either 90% of the employee’s basic salary or the prescribed rate (which for the 2020/2021 tax year is £151.20 per week).

SPBP is not payable for any week in which the employee is entitled to receive statutory sick pay or does any work for the employer (or another employer where they do not meet the eligibility criteria for SPBP).

Employers are able to recover SPBP from HMRC at a rate of either 103% or 92% depending on the size of the organisation.

Protections for employees during PBL

An employee taking a period of PBL is entitled to benefit from the same protections as employees taking other forms of family leave. In summary:

their terms and conditions of employment (excluding those relating to remuneration) remain in full force and effect, meaning, for example, that they will continue to accrue holiday;
in most cases they have the right to return to the same job that they held prior to taking a period of PBL;
any dismissal because they took, sought to take, or the employer believed that they were likely to take, a period of PBL will be automatically unfair; and
it will be unlawful to subject the employee to any other form of detriment because they took, sought to take, or the employer believed that they were likely to take, a period of PBL

Practical tips for employers

PBL is a new type of leave, operating in a completely different set of circumstances to other forms of family leave. It’s important for employers to recognise this in communications with employees following the death of a child.

We recommend that employers put in place a parental bereavement leave and pay policy which sets out the scope of the right and the steps the employee needs to take in order to exercise it. However, we also recommend allowing a degree of flexibility to employees, for example, allowing them to make the notification of their intention to take leave by way of text message if that is more convenient.

Employers who offer enhanced benefits packages could consider enhancing the statutory regime in the following ways:

enabling PBL to be taken following the death of a child of any age, not just for those aged under 18;
allowing employees to take more than two weeks leave;
granting an additional day’s leave each year on the anniversary of a child’s death; and/or
topping up SPBP so that the employee receives full pay during this period.

On an employee’s return to work the employer should speak to them and discuss whether there are any adjustments that could be made to their role and working practices (on a temporary or permanent basis). When doing so, the employer should remember that every situation is different and that they should discuss with each employee what would be helpful for them and not impose any changes without discussion. The important point to remember is to keep lines of communication open and to treat employees with compassion.

If your business needs advice on parental bereavement leave please contact either Clare Brereton (claretaylor@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

Government will not be improving rights for fathers any time soon

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The Government has published its response to the Women and Equalities Select Committee’s recent report.

In March this year, the House of Commons’ Women and Equalities Select Committee published its report, ‘Fathers and the Workplace’ setting out its recommendations for new legislation to support working parents better. The recommendations included:

Giving all new fathers their own independent and paid right to leave;
Making paternity a “day one” right;
Increasing the statutory rate of paternity pay to 90% of earnings (subject to a cap for higher earners); and
Offering 12 weeks of “use it or lose it” leave.

In June 2018, the Government published its response. It accepted the need for change but rejected many of the Committee’s recommendations designed to modernise workplace policies. The report concluded:

The Government was unlikely to follow the recommendation of making paternity leave a day-one right, as it currently is for maternity pay; and
With regard to Shared Parental Leave, further consultation was needed. The Government stated that it is “committed” to the concept and it has had “little time to bed in.”

In dismissing the Committee’s recommendations, the Government failed to put forward alternative solutions. Maria Miller, Chair of the Committee said, “The Government has previously voiced good intentions when it comes to family friendly policies but the response to our report is a missed opportunity.”

It is therefore clear that further reform of family friendly rights is not on the immediate horizon. The response did, however, comment that the forthcoming Maternity and Paternity Rights Survey this year will provide more data for the Government to consider parental leave in greater detail. The Government’s response can be found here.

Celebrate Global Day of Parents 2018

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1 June 2018 marks Global Day of Parents – a day declared by the UN General Assembly in 2012 which aims to honour parents and their commitment to nurturing and raising children throughout the world.

In my field as an employment lawyer acting for individuals, I have often had to explain to clients that being a parent is not itself a “protected characteristic” to claim discrimination. As such, whilst many employees may feel that their parenting responsibilities puts them at a disadvantage in the workplace (being side-lined for promotions, or viewed as being uncommitted and uninterested in their careers), their only course of action usually turns on establishing sex discrimination. This means that it is not always the easiest case to put forward, and for men, it can be tortuous.

So what is the UK doing to help and protect families in an employment law context? What (if anything) is likely to change?

The introduction of Shared Parental Leave allows both men and women to tag out of a woman’s right to maternity leave and share the childcare responsibilities for the first 50 weeks (either separately or concurrently) after the mother has taken the compulsory period of 2 weeks’ maternity leave. Whilst I know a few friends who have taken up this right (usually at the end of maternity leave when baby becomes more fun), shared parental leave take-up may be as low as 2%. Until uptake increases, stereotypical childcare perceptions of women bringing up the family are unlikely to change in the workplace.
Since 30 June 2014, all employees with at least 26 weeks’ of continuous service can make a flexible working request. This is a useful tool for working parents who may need a flexible working arrangement in order to balance work and family life. Employers have a wide scope to reject such requests and the penalties for an employer’s failure to agree to a flexible working request are limited.
Parental leave is available to some working parents and allows for up to 13 weeks unpaid leave for each child up to the age of 18 years old (although only a maximum of 4 weeks can be taken each year).

What more could the UK do to improve family rights?

Consider introducing “parenthood” as a protected characteristic under the Equality Act.
Extend the time limit for submitting claims for maternity and/or pregnancy discrimination from three months to six months. Evidence shows that the current time limit has a deterrent effect on the ability of pregnant women and new mums to access justice. This is unsurprising given that the focus is on the health and welfare of the mother and new baby, and not on litigation at this time.
Dispense with maternity and paternity leave and have one “family” leave right so that both men and women can choose who looks after the baby.
An alternative to a general “family leave” is to increase the duration and pay of paternity leave so that the options for childcare are more evenly distributed between parents (not just women). The present maximum of two weeks’ paternity leave is inadequate.
A small step that everyone can do today is to recognise the importance of parents, whether biological, non-biological, grandparents, foster parents, adoptive parents, step parents or anyone else who plays a role in shaping children’s lives.

Given that the UN’s Sustainable Development Agenda aims to end poverty, promote equal economic prosperity, social development, wellbeing and protect the environment, it is clear that the importance of the ‘family’ is key to the UN’s ambitions.

Creating a more supportive atmosphere for parents and carers can only lead to a more cohesive, happier and productive workforce, and society.

Emily Plosker is a Senior Associate at leading employment law firm BDBF

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The importance of risk assessments for breastfeeding workers

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In order to comply with EU law and avoid a finding of direct sex discrimination, employers should conduct individual risk assessments with breastfeeding workers in order to identify the risks that are posed in each worker’s particular circumstances.

Ms Ramos was a nurse in the accident and emergency department of a Spanish hospital. On return from maternity leave, she informed her employer that she was breastfeeding. She stated her belief that her job posed risks to her lactation. In particular, she was concerned about the effects of the shift system; the potential exposure to radiation and infections; and the stress caused by the job itself. In accordance with Spanish law, Ms Ramos asked that her working conditions be adjusted to minimise those risks.

Ms Ramos’ employer refused. It stated that her job was not of a category it considered to carry risks to breastfeeding mothers because it was not on the list of risk-based jobs agreed with workers’ representatives. On the same grounds, Ms Ramos was refused a financial assistance grant available to at-risk breastfeeding mothers under Spanish law. Ms Ramos’ legal challenge of that decision was referred on appeal to the European Court of Justice.

The European Court of Justice held that the failure to assess the risks posed to a breastfeeding worker by reference to that worker’s particular circumstances is less favourable treatment on grounds of pregnancy or maternity and constitutes direct sex discrimination. A breastfeeding worker must present evidence capable of showing that such a risk assessment was not carried out. Ms Ramos had evidence from her line manager, who agreed that her job posed risks which the employer had not taken into consideration. It is then for the employer to prove that there has been no discrimination, and Ms Ramos’ employer could not do so.

On the basis of this case, employers may want to take a belt-and-braces approach by conducting individual risk assessments for breastfeeding mothers returning to the workplace. However, there is no legal requirement to do so, as UK law prevents women from bringing direct sex discrimination claims on the basis of treatment relating to breastfeeding. Employers who choose to wait it out should watch this space, as UK law could be found to be incompatible with EU law on this point.

Ramos v Servicio Galego de Saude (C-531/15)

What can employers do to support women returning to work?

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What can employers do to support women returning to work?

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As part of City Giving Day, BDBF LLP is working with Smart Works, a charity supporting women returning to the workplace. Here, Emily Plosker, a senior associate at Brahams Dutt Badrick French LLP, looks at what employers can do to help women re-entering the job market.

Today marks City Giving Day – a day for businesses in the City of London to celebrate and promote the charitable and community work that they do. Hundreds of businesses take part with a vast array of fundraising activities, all for a number of different charities, and all dressed in red!

For example, we’re supporting Smart Works, which provides unemployed women with a free styling session, interview outfit and interview coaching to boost their confidence before interview.

As a working mum, I know that returning to work after a period at home with your baby is a daunting prospect. And as an employment lawyer, I am also aware of some of the errors made by employers as employees’ transition back into the work place.

Here are my tips to help employers manage a successful return to work for their employees, who may be returning to the workplace after maternity leave or a career break.

Flexible Working

Returning to work may involve a conversation about flexible and/or part-time working arrangements. Modern technology now allows for remote working, meaning that businesses can adapt to their employees’ modern lives, and make cost efficient use of office space.

When you receive a flexible working request an employer is obliged to deal with it and must give a decision within three months. It’s important that you listen to each request, think creatively about how a new working model could work and not worry about “setting a precedent”.

The way you deal with a flexible working request can really set the tone and atmosphere for your employee’s return (for better or worse). A content employee is beneficial for business.

Breastfeeding

Some women may still be breastfeeding when returning to work and so you may need to discuss the practicalities of this (e.g. use of a private room to express and fridge space for expressed milk, etc.). Remember – a toilet is not good enough! It’s important that employers treat breastfeeding with sensitivity – it’s an emotionally charged subject so being open and non-judgmental is key.

Keep flexible working arrangements under review

Once a flexible working arrangement has been agreed, it is a good idea to keep it under review from both the employer and employee side. Employers should monitor whether their employees are getting into bad habits, such as regularly working on weekends or on their day off.

Once colleagues and clients know a person is contactable, the amount of contact will increase and inevitably eat into their family time. A review of whether the arrangement meets the demands of the business and the needs of the individual should be carried out after a reasonable period of allowing the arrangement to bed in, and then discussed.

It is possible to have a transparent and constructive conversation with an employee to try and find a solution which works for both parties. This way, an employer can avoid complaints being made about unfair and detrimental treatment since an employee’s return to work. Positive attitudes on both sides and keeping the lines of communication open are crucial to a successful return.

Offer training

A few months out of the market can feel like a lifetime – technological advances, company restructures or changes in regulations can all influence an employee’s confidence when returning to work.

It may therefore be worth discussing with a returning employee what gaps in knowledge or skills they are feeling particularly concerned about and whether internal or external training sessions to get them up to speed, would be beneficial. For women on maternity leave, this could be taken as a “Keeping in Touch Day” (KIT Day) prior to their return to work.

City Giving Day

BDBF is running a clothing drive and taking donations of women’s office wear, shoes, accessories, jewellery and cosmetics at its office at Monument Place. If you do not have any suitable items to donate but still want to show support, monetary donations are also very welcome. Here is Smart Works’ website if you want to know more: http://smartworks.org.uk/

A version of this article was published in Employment Solicitor Magazine on 26 September 2017

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Parentlife to Citylife: how to manage the transition

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Parentlife to Citylife: how to manage the transition

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As a working mum, I know how challenging it can be to return to work after a period at home with your baby. As an employment lawyer, I also know the mistakes made by employees and employers as they try to adjust to this new reality. With uptake of shared parental leave slowly gaining pace, this is a subject that now applies to men and women. Here are my tips for a successful return:

Start talking to your employer as early as possible (without eating into your leave too much: those last months are precious). • Start talking to your employer as early as possible (without eating into your leave too much: those last months are precious).
In advance of any discussions with your boss, decide what working pattern you want. Think about the likely objections and be ready to address them. Think creatively: part-time, from home, term-time only, as part of a job share. If you have a partner, discuss with them who is better-placed to ask for flexible working. Be prepared to be flexible but know where your red lines are (i.e. what won’t work for your family). If you are asked to submit a formal flexible working request, make it as thorough as possible, addressing the potential impact on your employer.
Be aware of your legal rights: for example, your employer is obliged to deal with any flexible working request reasonably and give a decision within 3 months (if your request is refused you may have a sex discrimination claim); it is unlawful to treat you worse than other employees because you have been on leave (e.g. not giving you the best clients or giving you a lower appraisal rating than you deserve); if your colleagues received a pay rise while you were off, you are also entitled to one; your rights regarding your job vary depending upon how long you were off but, in short, your employer needs a very good explanation if it tries to say your old job isn’t available; and your employer must provide suitable facilities for breastfeeding (the toilet does not count). Awareness of your rights is vital, but don’t start quoting those rights too early: it’s always better to try to resolve things informally in the first instance.
Be prepared for the first month or so to feel very alien. You will likely feel a whirlwind of emotions including guilt (about leaving your child), anxiety (about your ability to do your job and/or how your child is coping), relief (about getting some sense of yourself back), stress (about how little time you have) and tiredness (because you’re a parent!). But take comfort from the fact that so many have successfully managed the transition before you: it does get easier.
Go back with a positive attitude and do what you can from your side to make it work. Even with the best employer, it will be a challenging time so be wary of blaming your employer for everything. Instead, focus on reminding them what an asset you are.
While you are at work, enjoy having hot coffee and meeting colleagues and contacts for lunch. On your break, nip to the local department store for some uninterrupted shopping time!
Don’t get into bad habits like weekend working or working on your day off, unless it’s absolutely necessary. Once colleagues and clients know you are contactable, the amount of contact will increase and inevitably eat into your family time.
Keep any new working arrangement under review. If it isn’t working (e.g. you’re working full time hours for a part time salary), say so.
If you feel that things are not the same on your return, try and work out whether that’s for personal reasons (i.e. you’d rather be at home with your child) or whether it’s related to how you’re being treated. Keep a record of any poor treatment: what was said, by whom and when. Talk to your manager or HR in the first instance. If there is no improvement, consider taking legal advice, contacting ACAS or raising a grievance.
Don’t do anything rash like resigning without fully considering the financial and reputational implications, and, more personally, whether you will be happy without a job or able to find another one which accommodates your need for flexibility. Constructive dismissal is a difficult claim for an employee to win and it usually better to try and negotiate an exit while you are still employed.
Also bear in mind whether any contractual pay that you received during your leave will be reclaimed if you resign.

It’s reasonable for your boss to expect you to get back to business fairly quickly but, if he wants to successfully integrate you back into the business, he also needs to appreciate that your needs and priorities are likely to have changed. Positive attitudes on both sides and keeping the lines of communication open are crucial to a successful return.

Ruth Gamble, Partner at BDBF

A version of this article was first published on European CEO on 5 September 2017

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What to expect in equality law

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What to expect in equality law

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Equality Law is an area which can change rapidly. Below is a summary of some of the bigger changes expected in the coming months and years.

Equal Pay

A class-action claim has been brought by Asda’s female shop floor staff, who argue that their pay should be the same as male workers in the company’s distribution centres. The claim is expected to be heard by the Employment Tribunal this year, at which point it would need to consider whether the claimants and their male colleagues do work of equal value. Whilst this claim is not the only one of its type given that Sainsbury’s staff have already brought a similar claim, a win could encourage yet more supermarket workers to seek legal redress.

In large firms with over 250 staff (Sainsbury’s and Asda included), data will need to be published regarding the gender pay gap. Whilst companies’ first reports are not due until April 2018, employers would be wise to review their pay practices now and ensure that they are able to comply with reporting requirements.

Discrimination at work

The Court of Justice of the European Union has heard cases on whether an employer’s decision to prohibit female Muslim staff from wearing headscarves at work amounts to religious discrimination (Bougnaoui v Micropole Univers and Achbita v G4S Secure Solutions).

The Advocate General’s view in Achbita was surprising, finding that outward symbols of religion could effectively be ‘left at the door’, such that a policy prohibiting them did not discriminate. It will be interesting to see if the CJEU follows this decision (either in Achbita or in Bougnaoui).

Discrimination in services

The well-publicised ‘gay cake’ case, Ashers Baking Co v Lee, will go before the courts again. The bakery has appealed against the judgment that it discriminated against a potential customer by refusing on religious grounds to bake a cake bearing a pro-gay marriage message. Whilst the Northern Irish courts’ decisions do not bind courts and Tribunals in England, the decision will still be persuasive when faced with similar cases.

In England, the Supreme Court must consider the rights of wheelchair users on buses. An appeal has been instituted against the Court of Appeal’s decision that it was not disability discrimination for a bus company to ask – but not to require – that other passengers move to make room for a wheelchair user.

Family-friendly rights

It may only have been in place for a year, but the government is expected to be simplifying the rules on shared parental leave in the near future. A consultation will also be launched into whether the rules should permit leave to be split with grandparents as well as between the parents.

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Employers aren’t obliged to carry on childcare vouchers under a salary sacrifice during maternity leave

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Employers aren’t obliged to carry on childcare vouchers under a salary sacrifice during maternity leave

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An employer which offered childcare vouchers by way of salary sacrifice was not obliged to continue to pay them to an employee on maternity leave.

Ms Donaldson was employed by Peninsula Business Services Ltd. The salary sacrifice scheme it operated, under which childcare vouchers were given, stated that the vouchers would not be provided and salary would return to normal when an employee went on maternity leave. Ms Donaldson claimed that the scheme was discriminatory on grounds of pregnancy and sex and accordingly brought a claim.

The Employment Appeal Tribunal dismissed Ms Donaldson’s claim. As the childcare vouchers were given as part of a salary sacrifice scheme, they should be considered to be remuneration. Statute provides that all contractual terms and conditions need to continue during maternity leave, except those relating to remuneration. Therefore, there was no obligation to continue providing vouchers during maternity leave.

This case does not affect cases where childcare vouchers are given on top of salary; the EAT was clear that, in such circumstances, the vouchers could not be considered to be remuneration and must therefore be maintained.

Peninsula Business Services Ltd v Donaldson [2016] UKEAT/0249/15

Employer’s duty to offer a suitable alternative vacancy to a woman on maternity leave arises when it becomes aware of potential redundancy

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The EAT has held that an employer’s duty under the Maternity Leave Regulations to offer a woman on maternity leave a suitable alternative vacancy arises when the employer becomes aware that her role is redundant or potentially redundant. The failure to make such an offer renders the woman’s dismissal automatically unfair.

Mrs Wainwright had worked for Sefton Borough Council as Head of Overview and Scrutiny for over 12 years. The council had been planning redundancies since 2010 and executed that plan in 2012. As part of the restructure, in June 2012, the council proposed to combine Mrs Wainwright’s role with Head of Member Services, held by Mr Pierce, to create a single role of Democratic Services Manager. Mrs Wainwright went on maternity leave in July 2012. On 26 July 2012, Mrs Wainwright’s and Mr Pierce’s positions were formally placed at risk of redundancy. In December 2012 the council invited Mrs Wainwright and Mr Pierce to interview for the new role, following which it was offered to Mr Pierce. Mrs Wainwright was put on the redeployment register; Mrs Wainwright was given three months’ notice in January 2013 of her dismissal for redundancy.

Mrs Wainwright brought claims for breach of the Maternity Leave Regulations and direct discrimination. In response, the council argued that its duty to offer an alternative role only arose once the reorganisation was completed, i.e. when Mr Pierce was chosen for the combined role in December 2012. It also submitted that the new position created was not a vacancy in the usual sense, in that it was only open to two candidates, so Mrs Wainwright was only entitled to advantageous treatment once she was in the redeployment pool.

The EAT found that it would undermine the purpose of the legislation to say that the employer is only obliged to offer an alternative vacancy once a restructure is complete; the obligation to offer alternative employment arose on 26 July 2012 when Mrs Wainwright’s role was formally put at risk of redundancy. Further, it was wrong to say that the new role is not a vacancy simply because it was only available to a limited pool. In any event, it was open to the council to offer a suitable vacancy other than that of Democratic Services Manager. The EAT held that the council had been wrong to ask Mrs Wainwright to take part in an interview process at all; the right under the regulations is to be offered a vacancy regardless of whether the woman is the best person for the job.

Sefton Borough Council v Wainwright UKEAT/0168/14