Employment Law 2022-2023
Work/Life Balance
Topic 3 – Lectures 7-8
Professor Deirdre McCann
PCL125/deirdre.mccann@durham.ac.uk
READING
Essential Reading
Ian Smith, Aaron Baker & Owen Warnock Smith and Wood’s Employment
Law 15th edn (Oxford University Press 2019), Chapter 5, pp 366-375, 378382, 392-411, 414-429
Catherine Barnard, Simon Deakin and Richard Hobbs ‘Opting Out of the 48Hour Week: Employer Necessity or Individual Choice? An Empirical Study of
the Operation of Article 18(1)(b) of the Working Time Directive in the UK’ 2003
32(4) Industrial Law Journal 223-252
Lucy Anderson ‘Sound Bite Legislation: the Employment Act 2002 and New
Flexible Working “Rights” for Parents’ (2003) 32(March) Industrial Law Journal
37-42
Gemma Mitchell ‘Encouraging Fathers to Care: The Children and Families Act
2014 and Shared Parental Leave’ (2015) 44(1) Industrial Law Journal 123133
See also (*) material below.
PART I. INTRODUCTION AND WORKING TIME LAW
1.
1.1
INTRODUCTION: WHAT IS WORK/LIFE BALANCE?
Work/life balance and UK employment law
[Work-life balance laws are a] collection of statutory rights seen as a
loosely coherent programme for ensuring that people could balance
work with other aspects of life, especially family life. In its simplest
sense, work-life balance it refers to the idea that preventing
exploitative working hours and requiring appropriate accommodation
for caring and other duties outside the workplace will improve the
quality of life for most people, and possibly productivity for business
as well.
Smith, Baker and Warnock, pp 368
2
1.2
Key policy objectives
Laws on maternity and parental rights can be understood to have a number of
interlinked policy objectives:



Work/family balance;
Gender equality;
Work/life balance.
Smith, Baker and Warnock, pp 368-372
*The National Minimum Wage (NMW)*
The National Minimum Wage Act 1998 (NMWA) is not examined
in detail on this module. Note, however, that this legislation can be
considered a work/family measure, in that it can ensure an
adequate income of workers and their families.
Note also that legislated work/family rights are minimum entitlements that
may be enhanced by contractual benefits offered by the employer.
2.
WORKING TIME REGULATION
Smith, Baker & Warnock, pp 372-375, 378-382, 392-395
2.1
History
2.1.1 The early legislation
The placing of limits on working hours is one of the most important
objectives of labour law and collective bargaining.
It was the goal of the first modern industrial legislation, the British Factories
Acts of the nineteenth century and of the first International Labour
Organization Convention in 1919, the Hours of Work (Industry) Convention,
1919 (No. 1), which embodied in the principle of the 8-hour normal working
day
See: http://www.ilo.org/dyn/normlex/en/f?
p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:312146; ILO
Hours of Work: From Fixed to Flexible (2005), available at
http://www.ilo.org/global/docs/KD00123/lang--en/index.htm).
3
2.1.2 Collective bargaining….and its decline
Collective agreements were the principal mechanism for limiting the working
week during most of the 20th Century e.g. the national engineering agreement
established a working week of 39 hours in 1979.
2.1.3 Enter Europe…. The EU Working Time Directive (WTD)
In 1993, the EU adopted the Working Time Directive (now Directive
2003/88/EC of 4 November 2003 concerning certain aspects of the
organisation of working time).
The Directive explicitly had a health and safety objective and was adopted
under Article 118a of the EC Treaty. See Case C-84/94 United Kingdom v
Council of the European Union [1997] IRLR 30.
Smith, Baker and Warnock, pp 372-374.
On the history of working time regulation, see further Zoe Adams, Catherine
Barnard, Simon Deakin and Sarah Fraser Butlin Deakin and Morris’ Labour
Law (7th edn 2021), pp 309-311.
2.2
Working Time Regulations 1998
[T]he implementation of the Working Time Directive will help to
support working parents.
To tackle excessively long working hours the Government will
implement the Working Time Directive…. There is no advantage to
employers in exhausted employees. On the contrary the need to
work within fair, maximum hours is likely to promote more efficient
working practices and innovation.
Department of Trade and Industry Fairness at Work (1998), paras
5.5-5.6
The Directive was transposed into UK law in the *Working Time Regulations
1998 SI 1998/1833; see Catherine Barnard, ‘The Working Time Regulations
1998’ (1999) 28 Industrial Law Journal 61-74.
2.2.1 Scope
The WTRegs embody the ‘worker model’ of personal scope, Regulation 2(1).
See e.g. Byrne Brothers v Baird [2002] ICR667 EAT;
Wright v Redrow Homes (Yorkshire) Ltd [2004] ICR 1126 CA
4
The Regulations also specifically extend protection to agency workers. They
apply between agency workers and ‘whichever of the agency and the
principal is responsible for paying the agency worker,’ Regulation 36.
2.2.2 Entitlements
2.2.2.1
Weekly hours
A worker’s working time, including overtime, should not exceed an average of
48 hours for each seven days in any reference period, Regulation 4(1).
Smith, Baker and Warnock, pp 378-380.
2.2.2.2
Rest periods
Rest breaks: at least 20 minutes where daily working time is more than 6
hours, Regulation 12.
Daily rest: Not less than 11 hours in each 24 hour work period, Regulation
10(1).
Weekly rest: Not less than 24 hours in each seven day work period,
Regulation 11(1).
Smith, Baker and Warnock, pp 382
2.2.2.3.
Annual leave
Workers are entitled to 28 days’ annual leave, Regulation 13.
Smith, Baker and Warnock, pp 386-38
2.2.2.4
Night work
A ‘night worker’s’ hours of work in any reference period are not to exceed an
average of eight hours in each 24 hours. Regulation 6(1). On the definition
of ‘night worker,’ see Regulation 2(1).
Night workers are also entitled to free health assessments, Regulation 7(1).
Smith, Baker and Warnock, pp 380-381.
2.2.3
Exclusions and derogations
2.2.3.1
‘Hours averaging’
Weekly working hours are not to exceed an average of 48 hours over each
seven days in a reference period. Regulation 4(1), (3). The limits on night
workers’ hours are also an average, Regulation 6(1).
5
Smith, Baker and Warnock, p 378, 380.
2.2.3.2
Collective agreements/ workforce agreements
See Regulation 23(b).
On workforce agreements, see Schedule 1, Para 1.
2.2.3.3
The ‘Individual opt-out’
The most well-known of the derogations from the WTD (and WTRegs) is the
‘individual opt-out.’
See Working Time Directive, Article 22; Working Time Regulations, Reg 4(1),
(2).
Smith, Baker and Warnock, p 378-379.
See further * Barnard, Deakin and Hobbs (above). See also Department for
Business, Innovation & Skills The Impact of the Working Time Regulations on
the UK Labour Market: A Review of Evidence (BIS Analysis Paper Number 5,
December
2014),
available
at
https://assets.publishing.service.gov.uk/government/uploads/system/
uploads/attachment_data/file/389676/bis-14-1287-the-impact-of-the-workingtime-regulations-on-the-uk-labour-market-a-review-of-evidence.pdf.
2.3
Assessments of the WTRegs
[T]he Directive has so far done little to change a long-hours culture,
driven by employers’ perceived needs for flexibility and workers’
desire to supplement their earnings or status. While we also find
evidence of innovation in working time in some workplaces….this
cannot be solely or even principally attributed to the Directive.
Barnard, Deakin and Hobbs (above), p 224
Since 1998 there has been a decline in the incidence of long-hours
working in the UK and a general trend towards shorter working hours.
It is possible that this is, at least in part, due to the introduction of the
48-hour maximum working week despite the existence of the opt-out.
We have also seen a general trend over this period towards a more
diverse range of working patterns…
Long-hours working is generally more prevalent in high income and
highly skilled occupations … It is more prevalent amongst males,
6
people with management positions, and in certain sectors.
Retaining the opt-out is very important both to UK business and to
UK employees. The evidence suggests that taking away the ability to
opt-out would be harmful both to business and to the welfare of
workers who currently opt-out. Survey evidence demonstrates that
the majority of workers currently working above 48 hours would not
want to reduce their hours if it meant less money.
Department for Business, Innovation & Skills (2014) (above), p 5
3.
‘FLEXIBLE WORKING’
Employers of all sizes are adopting different patterns of flexible working to
improve their competitiveness in the modern economy. Flexible working has
benefits for both employers and employees. It particularly suits working
parents who daily juggle meeting their work responsibilities with raising
children. But well-rooted cultural and legislative barriers continue to hamper
the greater adoption of flexible working. Therefore, although the Government
will continue to promote voluntary methods of encouraging flexible working, it
has decided to legislate to speed up the finding of solutions for working
parents.
Work and Parents Taskforce About Time: Flexible Working (November 2001)
Smith, Baker and Warnock, pp 425-428
See also Anderson (2003) (above); E Rose ‘Workplace Temporalities: A
Time-Based Critique of the Flexible Working Provisions’ (2017) 46 Industrial
Law Journal 245.
7
3.1
Policy objectives
Work and Parents: Competitiveness and Choice (DTI 2000); Work and
Parents Taskforce, About Time: Flexible Working (Department of Trade and
Industry 2001)
Employment Act 2002, s 47.
3.2
Statutory framework
Entitlements on flexible working are now found primarily in the *Employment
Rights Act, ss 80F-80I (Part VIIIA) and in the Flexible Working Regulations
2014 (FWRegs) SI 2014/1398.
3.3
Right to request
The right is to apply to the employer for a change in terms and conditions
of employment that relates to:
(1) hours of work
(2) times of work
(3) place of work.
Employment Rights Act 1996, s 80F(1)(a).
3.4
Personal scope
The legislation extends to ‘employees,’ Employment Rights Act, s 80F(1).
The right is attached to a qualifying period of 26 weeks of continuous
service with the employer, Employment Rights Act, s 80F(8)(a)(i), FWRegs,
Reg 3.
3.5
Coverage: extending the right
3.5.1 Carers of young children
The right to request flexible working was initially confined to parents of
children under 6.
3.5.2 Carers of adults
The Work and Families Act 2006 extended the right to carers of adults.
3.5.3 Carers of older children
The entitlement was extended to parents of children to 17 by the Flexible
Working (Eligibility, Complaints and Remedies) (Amendment) Regulations
2009, SI 2009/595, Regulation 3A.
8
3.5.4 Everyone
We think that by extending the right to request flexible working to all
employees, we can spread the benefits flexible working brings to all parts of
society and the economy. For businesses, holding onto experienced and
skilled staff is important in maintaining quality and containing costs. Offering
flexible working can help retain staff and widen the talent pool, so employers
are able to recruit people with more skills; it can also increase commitment
and loyalty of staff members. This, in turn, translates into increased
productivity and improved profitability, which we estimate will benefit business
by an average of £52.4m per year.
For employees, flexible working allows them to better balance their work life
with their family responsibilities. In today’s society, both men and women want
to find a balance between work, family and caring responsibilities. Flexible
working therefore has the potential to increase overall levels of participation in
the labour market, and so make a contribution to increasing employment and
decreasing benefit dependency and thus ultimately to reducing the deficit and
promoting growth.
BIS Consultation on Modern Workplaces (May 2011), p 33
The requirement to be a carer was removed by the Children and Families
Act 2014, s 131. The right to request therefore now covers all employees
with the requisite continuous employment.
HM Government The Coalition: Our programme for government (2010); BIS
Consultation on Modern Workplaces (May 2011), available at
https://www.gov.uk/government/uploads/system/uploads/attachment_data/
file/31549/11-699-consultation-modern-workplaces.pdf;
BIS
Modern
Workplaces Consultation – Government Response on Flexible Working
(November
2012),
available
at
http://www.bis.gov.uk/assets/biscore/employment-matters/docs/m/12-1267modern-workplaces-response-flexible-parental-leave.
3.6
Procedure
The employee must apply in writing including specified details ERA, s
80F(2).
The employer’s duty is now to ‘deal with the application in a reasonable
manner,’ Employment Rights Act, s 80G(1)(a). Previously more detailed
procedures for handling applications were required, which were removed by
the Children and Families Act 2014.
Grounds for refusal are specified, Employment Rights Act, s 80G(1)(b).
They are broad in scope e.g. additional costs, a ‘detrimental effect’ on the
9
employer’s ability to meet customer demand, the employer’s inability to reorganise work among other staff etc.
See also ACAS, Code of Practice on Handling in a Reasonable Manner
Request
to
Work
Flexibly
(2014),
available
at
http://www.acas.org.uk/media/pdf/f/e/Code-of-Practice-on-handling-in-areasonable-manner-requests-to-work-flexibly.pdf.
3.7
Complaint to an employment tribunal
The employee has the right to complain to an employment tribunal, but
only on limited grounds, including that the employer failed to deal with the
application in a reasonable manner or that the decision was based on
incorrect facts, s 80H.
See also Commotion Ltd v Rutty [2006] IRLR 171 (EAT), in which the EAT
offered a relatively wide interpretation of the legislation’s requirements.
The Employment Tribunal can issue a declaration that the complaint was well
founded and order the employer to reconsider the application and/or award
compensation, Employment Rights Act 1996, s 80I, FWRegs, Reg 6.
3.8
Assessment of the right to request ‘flexible working’
*Lucy Anderson ‘Sound Bite Legislation: the Employment Act 2002 and New
Flexible Working “Rights” for Parents’ (2003) 32(March) Industrial Law Journal
37-42
See also Hulya Hooker, Fiona Neathey, Jo Casebourne, Miranda Munro The
Third Work-Life Balance Employee Survey: Main findings (DTI 2007)
[available at
https://www.gov.uk/government/uploads/system/uploads/attachment_data/
file/32187/07-714x-third-work-life-balance-employee-survey-findingsrevised.pdf]
3.9
An alternate route: sex discrimination law
Not that a right to adjust working hours can (in some instances) be realised
under anti-discrimination law [not our focus in this element of the module].
Claims to work part-time/adjust schedules have been successful in some
cases. See in particular Home Office v Holmes [1984] ICR 678 (EAT). See
also London Underground Ltd v Edwards (No. 2) [1999] ICR 494 CA.
However, the outcome of this approach is difficult to predict. Compare
Greater Glasgow Health Board v Carey [1987] IRLR 484, Hardy & Hansons
plc v Lax [2005] IRLR726 CA.
Smith, Baker and Warnock, p 427.
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PART II. RIGHTS FOR PARENTS
Essential Reading
Gemma Mitchell ‘Encouraging Fathers to Care: The Children and Families Act
2014 and Shared Parental Leave’ (2015) 44(1) Industrial Law Journal 123133
Gemma Mitchell ‘Shared Parental Leave: Can Transferable Maternity Leave
Ever Encourage Fathers to Care?, advance access Industrial Law Journal, 6
July 2022, available at
https://academic.oup.com/ilj/advance-article-abstract/doi/10.1093/indlaw/
dwac015/6632459.
Further reading
Eugenia Caracciolo Di Torella ‘New Labour, New Dads – The Impact of
Family Friendly Legislation on Fathers’ (2007) 36 Industrial Law Journal 318
Department of Business, Innovation and Skills Consultation on Modern
Workplaces (May 2011), Section 3 (‘Flexible Parental Leave’), BIS Modern
Workplaces Consultation – Government Response on Flexible Parental Leave
(November
2012),
available
at
https://www.gov.uk/government/consultations/consultation-on-modernworkplaces
1. INTRODUCTION
1.1
Evolving policy objectives
Laws on maternity and parental rights have evolved from centring exclusively
on work/family balance to incorporating gender equality objectives and
more expansive rights for men. They have also gradually extended
entitlements for parents to care for older children.
[T]o exclude fathers from the debate at best assumes that fathers are
not interested in their young families and at worst it ignores the
impact on mothers’ double role. In turn, fathers are increasingly
eager to play an active role in the daily upbringing of their young
family.
Caracciolo Di Torella (2007) (above)
1.2
History: from reluctant accommodation to ‘family-friendly’ laws
11
The Employment Protection Act 1975 introduced three maternity rights:



not to be unfairly dismissed because of pregnancy;
to paid maternity leave;
to return to work after pregnancy/childbirth.
The law in this area was subsequently substantially reformed, including to comply
with an EU INSTRUMENT, the Pregnant Workers Directive, Directive 92/85/EC.
The Labour government elected in 2007 was committed to the introduction of
a new framework of ‘family-friendly’ legal entitlements:
Competitiveness depends on the UK making the best use of the
talents of as many people as possible. The larger the number of
people – particularly skilled people – to which business can look, the
better. We also need to ensure that as many people as possible who
want to work should have the chance to do so.
But work and parenthood can create conflicting pressures. Parents,
both men and women, need time with their children and time to
create a supportive home in which their children can thrive. When
they are at work they need confidence that their children are being
well cared for so that they can concentrate on the job in hand.
Helping employees to combine work and family life satisfactorily is
good not only for parents and children but also for business.
Department of Trade and Industry Fairness at Work (1998), paras
5.1-5.2
Since then, this sub-field of employment law has considerably evolving,
centrally by extending more extensive work/family rights to fathers.
Smith, Baker and Warnock, pp 368-32.
1.3
Key entitlements and frameworks
The key entitlements for parents are:







Protection from dismissal/detriment based on family reasons;
Maternity leave;
Paternity leave;
Shared Parental Leave (SPL);
Parental leave;
Time off for dependants (‘emergencies’);
Parental Bereavement Leave.
The key legislative measures are:

Employment Rights Act 1996;
12




2.
Maternity and Parental Leave etc. Regulations 1999 (MPLRegs);
Paternity and Adoption Leave Regulations 2002 (PALRegs) SI
2002/2788;
Shared Parental Leave Regulations 2014 (SPLRegs) SI 2014/3050;
Parental Bereavement Leave Regulations 2020 (PBLRegs).
FAMILY-BASED DISCRIMINATION: DISMISSALS AND DETRIMENT
Employees have the right not to be dismissed or to be subjected to any
detriment for family-related reasons e.g. pregnancy, childbirth, exercising
the entitlement to the various forms of family leave (see Section 3 below).
Dismissal: Employment Rights Act 1996 (ERA), s 99, MPLRegs, Reg 20,
PALRegs, Reg 29, Shared Parental Leave Regulations (SPLRegs), Reg 43.
This form of dismissal is automatically unfair (see further Topic 5 –
Termination of Employment): it is not attached to the two year qualifying
period for unfair dismissal protection.
Detriment: Employment Rights Act, s 47C, MPLRegs, Reg 19, PALRegs,
Reg 28, SPLRegs, Reg 42.
Smith, Baker and Warnock, pp 421-424.
3.
3.1
ENTITLEMENTS FOR MOTHERS (OF YOUNG BABIES):
MATERNITY LEAVE
Introduction
All pregnant employees are entitled to 52 weeks’ paid leave around the
period of the pregnancy and the early part of the child’s life (‘maternity
leave’).
This right was first introduced by the Employment Protection Act 1975. It
has since been significantly reformed, including to transpose an EU
instrument, the Pregnant Workers Directive (Council Directive 92/85/EEC of
19 October 1992 on the introduction of measures to encourage improvements
in the safety and health at work of pregnant workers and workers who have
recently given birth or are breastfeeding).
13
The rights are now contained in the Employment Rights Act 1996, Part VIII
and the MPLRegs, Part II.
3.2
Eligibility
Maternity leave is available to employees, Employment Rights Act 1996, s
71(1), s 230.
3.3
The leave entitlement
The entitlement is to 52 weeks of maternity leave (technically 26 weeks of
‘ordinary maternity leave’ and 26 weeks of ‘additional maternity leave’,
although the two forms of leave are identical), MPLRegs, Reg 7.
The employee has a right to return to work to the job in which she was
employed before her absence, MPLRegs, Reg 18. Her seniority, pension
rights and similar rights must be preserved and the terms and conditions
on which she returns must be not less favourable than previously, ERA 1996,
s 71(4)(c), (7), MPLRegs, Reg 18A.
3.4
Scheduling the leave
Employees are free to choose the start date of the leave period (within
certain limits), MPLRegs, Reg 4(2)(b).
However, there are two weeks of ‘compulsory maternity leave’ that begin
on the day of childbirth, Employment Rights Act 1996,s 72, MPLRegs, Reg
8.
3.5
Statutory Maternity Pay (SMP)
Maternity leave is paid. The payment – statutory maternity pay (SMP) - is
received from the employer, but is in effect reimbursed by the state (the
employer recovers the SMP by deducting it from National Insurance
contributions, Social Security Contributions and Benefits Act 1992, s 167).
Currently, mothers (subject to certain conditions) are entitled to receive
Statutory Maternity Pay (SMP) for up to 39 weeks. Social Security
Contributions and Benefits Act 1992, s 165(1).
This pay period has gradually been extended. Most notably, it was extended
by the Work and Families Act 2006 from 26 to 39 weeks.
There are two rates:
(1) The first six weeks of maternity leave are paid at 90% of the
employee’s normal weekly earnings;
(2) The remaining 33 weeks are paid at a flat rate, currently £156.66 per
week.
14
See Social Security Contributions and Benefits Act 1992, Part XII, Statutory
Maternity Pay (General) Regulations 1986, SI 1986/1960, as amended.
There is a qualifying period of 26 weeks’ continuous employment for the
entitlement to SMP, Social Security Contributions and Benefits Act 1992, s
164(2)(a), (b).
Smith, Baker and Warnock, 400-401.
4.
4.1
RIGHTS FOR FATHERS/PARENTS
Introduction: extending rights to parents
The Shared Parental Leave (SPL) scheme was introduced from 2015. The
SPL scheme permits the mother or primary adopter to convert 50 weeks of
maternity leave into SPL. The SPL period can then be shared with the father
or partner in a flexible schedule.
Parenting rights for fathers are a relatively recent innovation. A right to
paternity leave was first introduced by the Employment Act 2002. The
entitlement was to only two weeks’ paid leave during the early months of
the child’s life.
This right remains available to a child’s biological father or the mother or
primary adopter’s husband, partner, or civil partner where they have, or
expect to have, responsibility for a child’s upbringing, in conjunction with the
Shared Parental Leave (SPL) scheme (see the following section), Paternity
and Adoption Leave Regulations 2002, Part II.
4.2
The Shared Parental Leave (SPL) scheme
Shared parenting matters. The active involvement of both parents
has benefits for families, for relationships, for children, for business
and for wider society. Yet in Britain we retain a highly gendered,
inflexible approach to parental leave rights, one that entrenches the
assumption that the mother must be the primary carer in the early
stages of a child’s life and prevents fathers from getting involved.
This must change – Britain needs a new system of parental rights fit
for the 21st century that provides families with as much support and
flexibility as possible so they can choose how best to balance their
employment and caring responsibilities.
Department for Business, Innovation and Skills Consultation on Modern
Workplaces (2011) (above), p 11
15
The Shared Parental Leave scheme was introduced by the Children and
Families Act 2014 inserting Chapter 1B into Part VIII of the Employment
Rights Act 1996. The details are in the Shared Parental Leave Regulations
2014 (SPLRegs).
See Mitchell (above).
See also J Atkinson ‘Shared Parental Leave in the UK: can it advance gender
equality by changing fathers into co-parents?’ (2017) 13 International Journal
of Law in Context 356; Gemma Mitchell G ‘Shared parental leave and the
sexual family: the importance of encouraging men to care’ (2019) 41 Journal
of Social Welfare and Family Law 406; Grace James ‘Family-Friendly
employment Laws (Re)assessed: The Potential of Care Ethics’ (2016) 45
Industrial Law Journal 477, 497-8.
See on the original policy objectives HM Government The Coalition: Our
programme for government (2010); *BIS Consultation on Modern
Workplaces (May 2011), Section 3 (‘Flexible Parental Leave’) (above);
*BIS Modern Workplaces Consultation – Government Response on
Flexible Parental Leave (November 2012), (above); Modern Workplaces –
Shared Parental Leave and Pay Administration Consultation (25 February
2013), available at
https://www.gov.uk/government/consultations/consultation-on-theadministration-of-shared-parental-leave-and-pay .
4.2.1 Policy objectives
See Consultation on Modern Workplaces (above).
4.2.2 Entitlement
SPL can be shared between the mother or ‘primary adopter’ and the child’s
biological father or the mother’s spouse, civil partner or partner, SPLRegs
Reg 3(1).
The parents must have been continuously employed for at least 26 weeks,
SPLRegs, Regs 4(2)(a), 35.
Mothers remain entitled to the entire 52 weeks’ leave if they choose not to
transfer it. Mothers must declare that they ‘consent to the amount of leave
which [the other parent] intends to take,’ SPLRegs, Reg 8(3)(b)(iv).
4.2.3 Notice requirements
SPL is subject to complex notice requirements. Each parent must provide
his/her employer with a ‘notice of entitlement and intention to take’ leave
and a ‘period of leave notice’ at least eight weeks before the SPL is to be
taken. The first indicates how much SPL is intended to be taken, by which
partner, and ‘an indication of when’ it is intended to be taken, SPLRegs, Regs
16
8, 9. The second states precisely when the leave is expected to be taken, Reg
12.
4.2.4 The leave period
The SPL scheme allows 50 weeks of maternity leave and 39 weeks of pay
to be shared between the mother and father, ERA, s 75F(2).
The way it operates is that the mother curtails her entitlement to maternity
leave after the end of the compulsory maternity leave period, Maternity
and Adoption Leave (Curtailment of Statutory Rights of Leave) Regulations
2014, Reg 6(2), and converts the remaining maternity leave and pay
entitlement into SPL.
4.2.5 Pay
During the SPL period, Statutory Shared Parental Pay (SSPP) is payable for
the number of full weeks that remain of the mother’s 39-week SMP allowance
(see above), Statutory Shared Parental Pay Regulations 2014, Reg 10(1).
That is the lower flat rate, currently £156.66 per week.
See Smith, Baker and Warnock p 409.
Some companies give mothers enhanced pay across the maternity leave
period but this enhanced amount to fathers only for their two weeks paternity
leave. This kind of policy was challenged unsuccessfully as sex
discrimination before the Court of Appeal in Ali v Capital Consumer
Management Ltd and Hextall v Chief Constable of Lincolnshire Police [2019]
EWCA Civ 900. See Sarah Court-Brown, ‘Is Lower Pay for Shared Parental
Leave Discrimination? Ali v Capita Customer Management Ltd; Hextall v Chief
Constable of Leicestershire Police’ (2020) 49 ILJ 626.
4.2.6 Scheduling of leave
Parents can take leave concurrently alternately, or in blocks that overlap,
provided the leave is taken in week-long blocks, ERA, s 75F(8), SPLRegs,
Regs 13-14. However, employers can insist that leave be taken in a single
block, SPLRegs, Reg 14.
This scheme is more flexible than its predecessor, the APL scheme, which
allowed the employee to take the leave only as a continuous period.
4.3
Are care norms changing?
[W]e do not really know how society’s norms are going to shift after
April 2015. For millennia there has been an assumption that in the
ordinary course, it is mothers, and not fathers, who will be primarily
responsible for nurturing babies, at least for the first few years of their
17
lives.
Kingsley Napely Employment Law Blog
The government estimates that take-up among eligible couples is between
2% and 8%. See https://questions-statements.parliament.uk/writtenquestions/detail/2021-02-01/146798. See further e.g. Alexandra Topping
‘Shared Parental Leave: Scrap ‘Deeply Flawed’ Policy, Say Campaigners’ (26
April
2021),
https://www.theguardian.com/money/2021/apr/26/sharedparental-leave-scrap-deeply-flawed-policy-say-campaigners; Simon Usborne
“It was Seen as Weird”: Why are so Few Men Taking Shared Parental Leave’
(5
October
2019),
https://www.theguardian.com/lifeandstyle/2019/oct/05/shared-parental-leaveseen-as-weird-paternity-leave-in-decline.
The ‘daddy quota’?: Another policy approach is used in Scandinavian
models. These mandate a ‘use it or lose it’ period of leave that the other
parent must take or it is lost to both parents. See e.g. the proposals in
Equality and Human Rights Commission Working Better (2009)
file:///C:/Users/llqp36/Downloads/KE-02-18-932-EN-N.pdf,
Elin
Kvande
‘Individual Parental Leave for Fathers: Promoting Gender Equality In Norway’
(8
September
2021),
available
at
https://link.springer.com/chapter/10.1007/978-3-030-75645-1_8
and
the
recent EU Work-Life Balance Directive 2019 (see below; see Alvaro Oliveira,
Miguel De la Corte-Rodrigues and Fabian Lutz, ‘The New Directive on WorkLife Balance: towards a New Paradigm of Family Care and Equality?’ (2020
45(3) European Law Review 45(3), and, for a summary, https://www.londonlaw.co.uk/what-is-the-eus-work-life-balance-directive/).
18
5.
UNPAID PARENTAL LEAVE: WORK-FAMILY BEYOND THE EARLY
YEARS
Eligible employees can take unpaid parental leave to look after their
child’s welfare, e.g. to:




spend more time with their children;
look at new schools;
settle children into new childcare arrangements;
spend more time with family e.g. visiting grandparents.
https://www.gov.uk/parental-leave
Smith, Baker and Warnock, pp 415-417.
5.1
A right for parents of older children
Parental leave allows parents period(s) to care for their children beyond the
early years of their children’s lives.
The right is contained in the Employment Relations Act 1999, Chapter II.
The detailed provisions are in the MPLRegs, Part III.
5.2
A right from Europe
The right to parental leave was introduced for the first time by the
Employment Relations Act 1999. The Act transposed the EU Parental
Leave Directive, Council Directive 96/34/EC of 3 June 1996 on the framework
agreement on parental leave concluded by UNICE, CEEP and the ETUC.
The Directive has since been repealed and replaced by, first, the Parental
Leave Directive 2010, Council Directive 2010/18/EU of 8 March 2010
implementing the revised Framework Agreement on parental leave concluded
by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive
96/34/EC and, more recently, the Work-Life Balance Directive 2019,
Directive (EU) 2019/1158 of the European Parliament and of the Council of 20
June 2019 on work-life balance for parents and carers and repealing Council
Directive 2010/18/EU.
5.3
The ‘default’ model
The MPLRegs set out the coverage of the right to parental leave and to
certain universal entitlements.
The Regulations also contain a set of default provisions – a ‘model’ scheme
- that automatically comes into operation unless the parties agree on their own
scheme, MPLRegs, Regulation 6, Schedule 2. Alternative parental leave
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schemes can be agreed by employers and workers in a collective or
workforce agreement, Regulation 16.
5.4
Scope
The right to parental leave is available to employees, MPLRegs, Regs 2,
13(1).
Parental leave is available to employees who have or expect to have parental
responsibility for a child, MPLRegs, Regulation 13(1)(b).
There is a one year qualifying period of continuous employment, MPLRegs,
Regulation 13(1)(a).
5.5
Children to 18 years
The entitlement is to care for children up to 18 years.
5.6
Duration of leave
The employee is entitled to at least 18 weeks’ parental leave in respect of
each child, MPLRegs, Regulation 14(1).
The leave period was initially 13 weeks. It was extended by the 2010 EU
Directive and 2013 Regulations (see above).
5.7
An unpaid entitlement
**Parental leave is unpaid.**
5.8
Scheduling parental leave
Under the model scheme, an employee must not take more than four weeks’
leave in respect of any individual child during a particular year, Schedule
2, Regulation 8.
Under the model scheme, parental leave may not be taken in periods other
than a week or multiple of weeks, Schedule 2, Regulation 7. For example, it
should not be taken to cover a single day needed for childcare, Rodway v
New Southern Railways Ltd (2005) ICR 1162 (CA).
5.9
The right to return
An employee who takes parental leave of four weeks or less is entitled to
return to work to the job in which he or she was previously employed,
MPLRegs, Regulation 18(1).
If the leave period is more than four weeks, the employee is entitled to
return to (1) the previous job or (2) if that is not reasonably practicable, to
20
another jobs which is both suitable and appropriate for the employee,
MPLRegs, Regulation 18(2).
6.
6.1
TIME OFF FOR DEPENDANTS: FAMILY LEAVE FOR
EMERGENCIES
Introduction
Parents are also entitled to shorter periods of unpaid ‘time off for
dependants’ to deal with various emergencies.
The right to time off for dependants is contained in the EU Parental Leave
Directive (see above) and was introduced in the UK by the Employment
Relations Act 1999. It is contained in the Employment Rights Act 1996, ss
57A-57B.
Smith, Baker and Warnock, pp 418-420.
6.2
Entitlement
The entitlement is to a ‘reasonable amount’ of time off during
working hours to take action which is necessary:
(1) to provide assistance when a dependant falls ill, gives birth,
or is injured or assaulted;
(2) to make arrangements for the provision of care for a
dependant who is ill or injured;
(3) when a dependant dies;
(4) because of the unexpected disruption or termination of
arrangements for care of a dependant; or
(5) to deal with an incident which involves a child of the
employee and which occurs unexpectedly during school hours
or other time when the child’s school is responsible for the child.
Employment Rights Act 1996, s 57A(1)
21
A ‘dependant’ is primarily a spouse, civil partner, child, parent, or a
person who lives in the same household as the employee, Employment
Rights Act 1996, s 57A(3).
6.3
Employee obligations
The employee must tell the employer:
(1) the reason for the absence as soon as reasonably practicable; and
(2) how long the employee expects to be absent, Employment Rights
Act 1996, s 57A(2).
6.4
Duration
The leading case is *Qua v John Ford Morrison Solicitors [2003] IRLR 184
(EAT).
The EAT gave guidance on the interpretation of the statutory provisions:
(1) The right to time off does not enable employees to take time off
in order themselves to care for a sick child, beyond the reasonable
amount of time necessary to deal with the immediate crisis;
(2) Where an employee has exercised the right on more than one
previous occasion, the employer can take into account the
number/length of previous absences;
(3) Disruption/inconvenience to the employer is irrelevant and
should not be taken into account. The operational needs of the
employer are not relevant to a consideration of the amount of time
an employee needs to deal with emergencies.
The EAT also clarified that there is no duty on an employee to report to the
employer on a daily basis while taking time off work.
6.5
Remedies
An employee is entitled to complain to an Employment Tribunal that his
employer has unreasonably refused to permit him to take time off,
Employment Rights Act 1996, s 57B.
Where the Tribunal finds the complaint well-founded, it must make a
declaration to that effect and may make an award of compensation, s
57B(3).
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7.
PARENTAL BEREAVEMENT LEAVE
Since 2018, parents have had the right to two weeks’ paid leave after the
death of a child under 18.
The right was introduced by the Parental Bereavement (Leave and Pay) Act
2018. The Act inserted new sections 80EA-80EE into the Employment
Rights Act 1996, with the details in the Parental Bereavement Leave
Regulations 2020 SI 2020/249 (PBLRegs) (and the Statutory Parental
Bereavement Pay (General) Regulations 2020 SI 2020/233 and Statutory
Parental Bereavement Pay (Administration) Regulations 2020 SI 0220/246).
The right to Parental Bereavement Leave is available to employees without a
qualifying period. The right applies to parents, including adoptive parents
and others responsible for the day-to-day- care of a child, PBLRegs,
regulation 4.
PBL is paid. An employee who qualifies for PBL is also entitled to Statutory
Parental Bereavement Pay. This right is subject to a 26 weeks’ qualifying
period, Social Security Contributions and Benefits Act 1992, s 171 and
Statutory Parental Bereavement Pay (General) Regulations 2020 SI 2020/233
reg 4.
A CODA: FUTURE REFORMS?
The 2019 Queen’s Speech signalled a future Employment Bill https://assets.publishing.service.gov.uk/government/uploads/system/
uploads/attachment_data/file/853886/Queen_s_Speech_December_2019__background_briefing_notes.pdf. The Bill was foreseen to include the
following work/life measures:


Introduce a new right for all workers to request a more predictable
contract.
Introduce an entitlement to one weeks’ leave for unpaid carers.
Subject to consultation, make flexible working the default unless
employers have good reason not to.
The Bill was not, however, included in the 2022 Queen’s Speech (10 May
2022). See further https://www.personneltoday.com/hr/queens-speechemployment-bill-2022/. The future of this legislation is therefore uncertain.
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