  |
Professional Understanding ... |  |
|
|
Employment A service for Employers and Employees Team Leader and Partner Mike Pitt Family Friendly Provisions April 2003 will see the implementation of the Employment Act 2002 which provides new rights for working parents which may affect you as an employer. Parents of children aged under six or of disabled children aged under 18 will have the right to apply to work flexibly. Maternity leave and pay will be increased and extended and new rights to paid adoption and paternity leave will be introduced. These rights apply in England, Scotland and Wales. I set out below the basic details relating to these changes. If you require further advice or information please contact either myself or a member of my team to obtain detailed advice relevant to your specific circumstances. Flexible Working The 2002 Act gives parents the right to apply for flexible working. It will not provide an automatic right to work flexibly as there will always be circumstances when the employer is unable to accommodate the employee’s desired work pattern. The right is designed to meet the needs of both parents and employers, especially small employers. It aims to facilitate discussion and encourage both the employee and the employer to consider flexible working patterns and to find a solution that suits them both. Employees who wish to make a request must have responsibility as the mother, father, adopter, guardian or foster parent of the child; or be married to such a person and living with the child; or be the partner of such a person; and have or expect to have responsibility for the upbringing of the child. The child must be aged under six or a disabled child aged under 18. Parents wishing to adopt a flexible working pattern will need to submit a written application to their employer. This application must set out the desired working pattern and include an explanation of how the employer could accommodate this request. There will be a clearly defined procedure for both employees and employers to follow. The employee must have worked with their employer continuously for 26 weeks at the date the application is made. Employees can complain to an Employment Tribunal if the employer has not followed a correct procedure or the grounds on which the employee has been refused the request for flexible working are incorrect. We can help you to deal with any applications you may receive for flexible working.
Women whose expected week of childbirth (EWC) begins on or after 6 April 2003 will benefit from the new maternity leave provisions. Women whose ECW is on or after 6 April 2003 will benefit from the new leave rights even if their babies are born earlier than expected. The changes to maternity leave provisions will NOT apply to women whose EWC is before 6 April 2003, even if their babies are born later than expected on or after 6 April 2003. The length of ordinary maternity leave will be increased and pregnant employees will be entitled to 26 weeks’ ordinary maternity leave, regardless of how long they have worked for their employer. Women who have completed 26 weeks’ continuous service with their employer by the 15th week before their EWC will be able to take additional maternity leave. Additional maternity leave will start immediately after ordinary maternity leave and continue for a further 26 weeks. Additional maternity leave is usually unpaid although a woman may have contractual rights to pay during her period of additional maternity leave. A pregnant employee will be required to notify her employer of her intention to take ordinary maternity leave by the 15th week before her EWC, unless this is not reasonably practicable. She will need to tell her employer:-
A woman will be able to change her mind about when she wants to start her leave providing she tells her employer at least 28 days in advance (unless this is not reasonably practicable). There will be a new requirement on employers to respond to a woman’s notification of her leave plans within 28 days. An employer will need to write to his employee, setting out the date on which he expects her to return to work if she takes her full entitlement to maternity leave. We can provide a draft letter for you to use if you so require. There will be no change to how early a woman is able to start her maternity leave – the earliest date will continue to be the beginning of the 11th week before her baby is due. There will no longer be provision for an employer to write to a woman before the end of her ordinary maternity leave period to ask the date on which her child was born and whether she intends to return after her additional maternity leave period. This means that a woman who intends to return to work at the end of her full maternity leave entitlement will not be required to give any further notification to her employer. An employee who wants to return to work before the end of her maternity leave will need to give her employer 28 days’ notice of the date she wants to return to work.. A woman’s maternity leave will start automatically if she is absent from work for a pregnancy related illness during the four weeks before the start of her EWC, regardless of when she has said she actually wants her maternity leave to start. Statutory Maternity Pay The Department for Work and Pensions will be making changes to Statutory Maternity Pay (SMP). The most important of these changes will be the length of time covered by SMP and the increase in the amount paid. In order to qualify for SMP the employee must have completed 26 weeks’ continuous service at the 15th week before the EWC. Women who are entitled to SMP and whose EWC begins on or after 6 April 2003 will receive SMP for 26 weeks. Women who are entitled to SMP and whose EWC begins on or after 6 April 2003 but who give birth prematurely, will still be entitled to receive SMP for 26 weeks. From 6 April 2003 the standard rate of SMP will increase from the current £75.00 a week to £100.00 a week (or 90% of the woman’s average weekly earnings if this is less than £100 a week). There will be no change to the current earnings-related rate of SMP (90% of average weekly earnings) which applies for the first six weeks of the pay period. This means that when the changes are fully in place, women will get SMP from their employer worth 90% of their earnings for 6 weeks, followed by 20 weeks at £100.00 (or 90% of earnings for the full 26 weeks if this is less than £100.00 a week). Existing arrangements for employers to recover SMP will continue – employers are able to claim back 92% of the payments they make, with those eligible for small employers’ relief able to claim back 100% plus an additional amount in compensation for the employer’s portion of National Insurance contributions paid on SMP. In addition, under the new arrangements, employers who need to, will be able to receive funding in advance for payments of SMP from the Inland Revenue. Right To Return After Maternity Leave An employee returning from ordinary maternity leave is entitled to go back to her normal job on the same terms and conditions as if she had not been absent. If a redundancy situation arises during her maternity leave, you must offer her any other suitable work that is available at that point. An employee
returning from additional maternity leave is entitled to go back
to her old job. However if a redundancy situation has arisen during
the additional leave period, or if there is some other genuine reason
why her original job is no longer available, you must offer her
any other suitable work that is available when she returns. But
if you have five or fewer employees, it would not be an automatically
unfair dismissal if you did not take back a woman after the additional
maternity leave period if to do so would not be reasonably practicable.
(If there is a dispute, it would be for an employment tribunal to
decide what was ‘reasonably practicable’) To qualify for paternity rights employees will need to satisfy the following conditions. They must:-
Eligible employees will be able to take up to two weeks’ paid leave in addition to parental leave to care for their new baby and support the mother. Paternity leave
must be taken during the period of 56 days beginning with: During their paternity leave most employees will be entitled to Statutory Paternity Pay (SPP) from their employer. The rate of SPP will be the same as the standard rate of SMP – from April 2003, this will be £100.00 a week or 90% of average weekly earnings if this is less than £100.00. Any paternity pay period which starts before 6 April 2003 will be paid for the full period at the same standard rate as SMP from April 2002 - £75 a week. Employees who have average weekly earnings below the lower earnings limit for National Insurance purposes (£75 a week from April 2002) will not qualify for SPP. Employees will be required to inform their employer of their intention to take paternity leave by the fifteenth week before the baby is expected, unless this is not reasonably practicable.. They will need to tell their employers:-
Employees will be able to change their mind about the date on which they want their leave to start providing they tell their employer at least 28 days in advance (unless this is not reasonably practicable). Employees will have to tell their employer the date they expect any payments of SPP to start at least 28 days in advance, unless this is not reasonably practicable. Employees will have to give their employer a completed self-certificate as evidence of their entitlement to SPP. Employers can also request a completed self certificate as evidence of entitlement to paternity leave. This self certificate must include a declaration that the employee meets certain eligibility conditions and provide the information specified above as part of the notice requirements. By providing a completed self certificate employees will be able to satisfy both the notice and evidence conditions for paternity leave and pay. Employers will not be expected to carry out any further checks. Employees are entitled to the benefit of their normal terms and conditions of employment, except for terms relating to wages or salary (unless their contract of employment provides otherwise), throughout their paternity leave. However most employees will be entitled to SPP for this period. If the employee has a contractual right to paternity leave as well as the statutory right, he may take advantage of whichever is the more favourable. Any paternity pay to which he has a contractual right reduces the amount of SPP to which he is entitled. Employees will be entitled to return to the same job following paternity leave. Employees will be protected from suffering unfair treatment or dismissal for taking, or seeking to take, paternity leave. Employees who believe they have been treated unfairly will be able to complain to an employment tribunal. Employers will be able to recover the amount of SPP they pay out in the same way as they can currently claim back SMP. In addition, employers who need to will be able to receive funding in advance for payments of SPP from the Inland Revenue. Adoption Rights A new right to adoption leave and pay is being introduced. The new right will be available to individuals who adopt, or one partner of a couple where the couple adopt jointly. A new right to paternity leave and pay for the other member of the couple, or an adopter’s partner, is also being introduced. Subject to Parliamentary approval, employees whose children are placed with them on or after 6 April 2003 will benefit from the new adoption and paternity leave and pay rights. To qualify for adoption leave, an employee must:- Be newly matched
with a child for adoption by an approved adoption agency Adopters will be entitled to up to 26 weeks’ ordinary adoption leave followed immediately by up to 26 weeks’ additional adoption leave – a total of up to 52 weeks’ leave. Additional adoption leave will usually be unpaid although an adopter may have contractual rights to pay during his period of additional adoption leave. An adopter can choose to start their leave:
Only one period of leave will be available irrespective of whether more than one child is placed for adoption as part of the same arrangement. If the child’s placement ends during the adoption leave period, the adopter will be able to continue adoption leave for up to eight weeks after the end of the placement. During their adoption leave, most adopters will be entitled to Statutory Adoption Pay (SAP) from their employers. Adopters will
be required to inform their employer of their intention to take
adoption leave within 7 days of being notified by their adoption
agency that they have been matched with a child for adoption, unless
this is not reasonably practicable.They will need to tell their
employer:-
Adopters will be able to change their mind about the date on which they want their leave to start providing they tell their employer at least 28 days in advance (unless this is not reasonably practicable). They will have to tell their employer the date they expect any payments of SAP to start at least 28 days in advance, unless this is not reasonably practicable. Employers will have 28 days in which to respond to their employees’ notification of their leave plans. An employer will need to write to the employee, setting out the date on which they expect the employee to return to work if the full entitlement to adoption leave is taken. We can provide a draft letter for you to use if you so wish. Employees will have to give their employer documentary evidence – a ‘matching certificate’ – from their adoption agency as evidence of their entitlement to SAP. An employer can also ask for this certificate as proof of entitlement to adoption leave. Employees are entitled to the benefit of their normal terms and conditions of employment, except for terms relating to wages or salary, (unless their contract of employment provides otherwise), throughout their 26 week ordinary adoption leave period. However most adopters will be entitled to SAP during this period. If the employee has a contractual right to adoption leave as well as the statutory right, he may take advantage of whichever is the more favourable. Any adoption pay to which he has a contractual right reduces the amount of SAP to which he is entitled. During additional adoption leave, the employment contract continues and some contractual benefits and obligation remain in force, for example compensation in the event of redundancy and notice periods. Adopters who intend to return to work at the end of their ordinary or additional adoption leave entitlement will not have to give any further notification to their employer. Adopters who want to return to work before the end of their ordinary or additional adoption leave period, must give their employers 28 days’ notice of the date they intend to return. There is no requirement that this notice be given in writing. If an employee attempts to return to work without having given at least 28 days’ notice, the employer is entitled to postpone the employee’s return to a date that will secure the full period of notice. The employer may not, however, delay the employee’s return beyond the end of the additional adoption leave period. If the employer has exercised the right to defer an employee’s return date on account of inadequate notice having been given by the employee, but the employee nevertheless returns to work before the date specified by the employer, then the latter is under no contractual obligation to pay the employee remuneration until that date. Employers will be able to recover the amount of SAP they pay out in the same way as they can currently claim back SMP. In addition employers who need to will be able to receive funding in advance for payments of SAP from the Inland Revenue. Following the placement of a child for adoption, the new rights for paternity leave and pay will give eligible employees the right to take paid leave to care for their new child or support the adopter.
Employees – both mothers and fathers – who have completed one year’s service with their employers are already entitled to 13 weeks’ (unpaid) parental leave to care for their child. Parental leave can usually be taken up to 5 years from the date of birth or in cases of adoption five years from the date of placement (or the child’s 18th birthday, if that is sooner). Parents of disabled children are entitled to 18 weeks’ parental leave (previously 13 weeks) up to the child’s 18th birthday, providing they have the qualifying length of service. All employees are also entitled to take a reasonable amount of (unpaid) time off work to deal with an emergency or unexpected situation involving a dependant. If you require
any further information on the new Family Friendly provisions please
do not hesitate to contact either myself Michael Pitt, my colleague
Mrs Tracey Banks or my assistant Ms Susan Mayall. |
||||||||||||||||
Pearson Hinchliffe |
Telephone: 0161 785 3500
|
|||||||||||||||||
This
website relates to the Laws of England and Wales. This website is intended for general guidance and should not be relied upon without detailed legal or financial advice on your specific circumstances. |
||||||||||||||||||
Regulated
by the Law Society |
||||||||||||||||||
| Home page | About Us | Business & Commercial | Employment | Personal Injury & Accidents | Clinical Negligence | Family Law & Child Care | Wills, Trusts & Probate | Private Client | Partners and Teams | Terms of Business | Free Clinics in Law | PH Lawyers Direct | Career Opportunities | Contact Us | ||||||||||||||||||
