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PREVIOUS SPEAKERS:

Camilla Palmer, Palmer Wade

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Title: Family friendly issues: The law - does it fit reality

PART 1: OVERVIEW OF NEW LEAVE RIGHTS

New rights

From 6^th April 2003 major changes to maternity leave and new rights paternity and adoption leave come into force.

Rights during pregnancy

• It is unlawful sex discrimination to refuse a pregnant woman a job because she is pregnant - even if her pregnancy makes it impossible for her to do her job. The same principle applies to dismissal of a woman (which will also be automatically unfair dismissal). This applies to fixed term contracts Tele Danmark A/S [2001] IRLR 853 where ECJ said

• A woman is entitled to reasonable paid time off for antenatal care

• An employer must protect the health and safety of a woman who is pregnant or who has recently had a baby, this could mean that the employer has to suspend her on full pay if it is not safe for her to remain at work

• A woman who has pregnancy related sickness must not be disadvantaged because of it - at any stage. What if woman continues to work despite feeling unwell because of her pregnancy and this detrimentally affects her work, so that she is disciplined.

• Need to distinguish:
• ordinary sickness unrelated to pregnancy,
• pregnancy related sickness,
• need to be off work for health and safety reasons.

Maternity leave

• All employees are entitled to 26 weeks ordinary maternity leave, irrespective length of service

• Employees with 26 weeks service by the 15^th week before the expected week of childbirth are entitled to:
• additional maternity leave of a further 26 weeks, 52 weeks’ leave in all and
• statutory maternity pay (provided their earnings are high enough)
• low earning employees who do not qualify for SMP may be entitled to maternity allowance or incapacity benefit

• Employee must notify employer of pregnancy, EWC, and planned date of start of leave in the 15^th week before EWC. Employee can vary start of leave provided she gives notice 28 days before the old or new start date, whichever is earlier. Employer must, within 28 days, write to employee stating her expected date of return if she takes her full leave. Does this really give employers time to plan as the date of leave can be changed on 28 days notice

• Employee must give 28 days notice of early return.

• Note that where, during an employee’s maternity leave, it is not practicable by reason of redundancy for her employer to continue to employer her, she must be offered any suitable available vacancy – in preference to any other employee.

• Failure to consult a woman about redundancy because she is on maternity leave will be sex discrimination McGuigan v TG Baynes 1114/97 EAT

• a woman who is dismissed or who suffers a disadvantage in relation to any of the above will have a direct sex discrimination claim and also claims for automatically and ordinary unfair dismissal under ERA.

• And the new burden of proof for sex discrimination claims?

Parental leave

• Parents including adoptive parents are entitled to 13 weeks unpaid parental leave in the five years following the birth/ adoption; usually (under default scheme) only 4 weeks may be taken per child per year. Practical solution may be for employee to take parental leave for longer holidays (to care for child) and holiday for odd days off, where less notice is usually required.

• Parents of disabled children have 18 weeks leave to be taken before the child is 18.

• A parent who is dismissed or who suffers a disadvantage in relation to any of the above will have a claim under ERA. A woman may have an indirect sex discrimination claim on the basis that more women than men take parental leave and so more women are likely to be disadvantaged by any refusal.

Time off for dependants

• A parent with a dependant is entitled to reasonable time off to deal with an emergency where, for example, a child falls ill or childcare arrangements break down. The right to TOD also applies to some adults with adult dependant such as the partner of a woman who is giving birth.

• What does reasonable mean? Can affordability and availability of childcare to care for child not well enough to attend nursery, school or childminder be taken into account. See recent decision of Qua v John Ford Morrison (solicitors) Time Law Report 14 January 203: employer must take account of the individual circumstances of the employee seeking to exercise the right.

• A parent who is dismissed or who suffers a disadvantage in relation to any of the above will have a claim under ERA. A woman may have an indirect sex discrimination claim on the basis that more women than men take TOD and so more women are likely to be disadvantaged by any refusal.

Paternity leave

• Fathers and partners of a child’s mother with 26 weeks service by the 15^th week before the expected week of childbirth are entitled to 2 weeks paternity leave

• Partners of a person adopting a child with 26 weeks service by the week of matching for adoption are also entitled to paternity leave

• If their earnings are high enough fathers/ partners will be paid statutory paternity pay of £100 a week; there is not equivalent to maternity allowance for fathers.

Adoption leave

• Adoptive parents with 26 weeks service by the week of matching for adoption are entitled to:
• ordinary adoption leave of 26 weeks plus additional adoption leave of a further 26 weeks, 52 weeks’ leave in all and

• Statutory adoption pay of £100 for 26 weeks(provided their earnings are high enough); there is not equivalent to maternity allowance for adopters

• Rights during OAL and AAL are similar as OML and AML

Automatically unfair dismissal and detriment

A parent who is dismissed or who suffers a disadvantage in relation to any of the above will have a claim under ERA. A woman may have an indirect sex discrimination claim on the basis that more women than men take adoption leave, parental leave and TOD and so more women are likely to be disadvantaged by any refusal.

PART 11: THE NEW RIGHT TO REQUEST FLEXIBLE WORKING AND INDIRECT SEX DISCRIMINATION

1. Overview

There will be a new right, under 80F ERA 1996 (as amended by the Employment Act 2002), for employees, who have worked for the employer for 26 weeks, to request a different working pattern to enable the employee to care for a child under 6 (or disabled child aged under 18). The employer must seriously consider the request under a prescribed procedure (The Flexible Working (Eligibility, Complaints and Remedies) Regulations, The Flexible Working (Procedural Requirements) Regulations 2002)

The new right will apply from 6 April 2003:

• to employees not to workers (unlike the Sex Discrimination Act, which prohibits indirect sex and marital discrimination against workers);

• only if the employee has 26 weeks’ continuous service (unlike the SDA);

• to men and women (unlike the SDA which generally only enables women to make a claim for indirect discrimination, though a man can claim direct discrimination);

• where the employee has responsibility for a child under 6 (or 18 if disabled) (unlike the SDA, which applies irrespective of the age of the child).

A right without a remedy?

The major failing in the new right is that the legislation does not give tribunals the power to question the commercial validity of the employer’s decision (unlike under the SDA). Maximum compensation for failing to comply with the procedure is £2,080 (8 weeks pay at a maximum of £260 pw).

Sex discrimination?

By contrast, under the SDA a tribunal can award compensation where an employer has indirectly discriminated (against a woman) and cannot justify a refusal to allow flexible hours, or directly discriminated against a man. The tribunal can make recommendation that the employer grant the employee’s request.

Employers may think they can refusal flexible working, go through the procedure, say ‘No’ and be faced with a discrimination claim – indirect for women and direct for men (see Walkingshaw decision EOR)

Could there also be a constructive dismissal claim is employer is cavalier about the procedure?

Key differences between SDA and ERA right

Indirect Sex/Marital Discrimination

Summary of the ERA right to request flexible working/contract variation

2. Conditions of entitlement

The employee must:

1. have been continuously employed for at least 26 weeks at the date of application; cf SDA
2. not be an agency worker, nor a member of the armed forces; cf SDA
3. be:

• married to one of the above; or
• partner (including same sex partners) of one of the above;

1. must have or expect to have responsibility for the upbringing of the child under 6 or disabled child under 18; cf SDA
2. must not have made another application to work flexibly under this procedure during the previous 12 months cf SDA and
3. make the application in order to care for the child = SDA (but also applies to care for elderly dependants).

3. Definitions

A disabled child is a child who is entitled to a disability living allowance;

Foster parent: a foster parent within Fostering Service Regulations 2002;

Guardian: a person appointed as a guardian under s5 Children Act 1989

Partner, in relation to a child’s mother, father, adopter, guardian or foster parent, means a person (whether of a different sex or the same sex) who lives with the child and the mother, father adopter, guardian or foster parent in an enduring family relationship with the mother, father, adopter, guardian or foster parent and who is not a relative. A relative (full or half blood and adoptive) means the person’s parent, grandparent, sister, brother, aunt or uncle.

Working day means any day on which the employer is open for business

4. The procedure under the ERA

The proposed procedure for requesting Flexible Working (a contract variation) is that:

1. Employees may request a new working pattern at any time from the birth of the child up to 14 days before the child’s 6th birthday (or 18^th birthday if child is disabled). This must be for the care of the child.
2. The proposal may relate to:

• the hours worked,
• times at which the hours are worked,
• place of work as between his/her home and a place of business of the employer (including working at home). See www.dti.gov.uk/work-lifebalance

1. An application must be in writing (whether it be in manuscript, typed or sent by email) and must state whether a previous application has been made to the employer and, if so, when, and be dated. The application must:

(i) state that it is such an application,

(ii) specify the change applied for and the date on which it is proposed the change should become effective;

? should employee put forward more than one option

(iii) explain what effect, if any, the employee thinks making the change would have on the employer and how, in his or her opinion, any such effect might be dealt with, and

(iv) explain the relationship between the employee and the child.

There are rules for deciding when an application is made.

Under SDA request need only be made orally.

2. The employer shall only refuse the application on one of a number of specified grounds, which are set out in clause 80G of the Act. They are:

• The burden of additional costs,
• detrimental effect on ability to meet customer demand,
• inability to re-organise work among existing staff,
• inability to recruit additional staff,
• detrimental impact on performance,
• insufficiency of work during the periods the employee proposes to work,
• planned structural changes.

1. If the employer agrees to the proposed variation he or she must notify the employee within 28 days, stating the agreed contract variation and the date from which the variation is to take effect.
2. The employer must arrange a meeting within 28 days to consider the request, unless the employer agrees to the proposed contract variation and notifies the employee accordingly. The time and place of the meeting shall be convenient to the employer and employee (and companion). The employee may be accompanied to the meeting, see below.

If the individual who would consider the application is on holiday or sick leave at the time the application is received, the time limit will be extended – up to 28 days.

3. The DTI summary (PL 516) provides that the meeting ‘will provide the employer and the employee with the opportunity to explore the desired work pattern in depth and discuss how it might be accommodated. It will also provide an opportunity to consider alternative working patterns should there be problems in accommodating the desired work pattern outlined in the employee’s application.’
4. the employer must write to the employee within 14 days of the date of the meeting, either

• accepting the request and giving a start date,
• confirming a compromise agreed in the meeting, or
• rejecting the request and giving a sufficient explanation of the business reasons for doing so and setting out the appeals procedure;

1. The employee may appeal within 14 days after the date of the notice of the decision. A notice of appeal must be in writing, set out the grounds of appeal and be signed and dated by the employee.
2. Within 14 days of being informed in writing that the employee wishes to appeal the employer should arrange an appeal meeting, unless the employer agreed to uphold the appeal and notifies the employee in writing of his or her decision, specifying the contract variation agreed to and the date it is to take effect.
3. An employer shall notify the employee, in writing, of his or her decision on an appeal within 14 days after the date of the meeting to discuss the appeal. This notice must be in writing.

Extension of time limits

There is provision for the parties to agree to an extension of any of the time limits. The agreement must be recorded in writing by the employer, it must specify the time limit concerned and the date on which the extension is to end, and be sent to the employee, in writing, signed and dated.

5. Right to be accompanied

The employee has a right to be accompanied, by another worker, at the initial meeting and at the appeal. The companion cannot answer questions for the employee but can confer with the employee and address the meeting. If the chosen companion is not available the employer must grant an employee’s request for a postponement provided it is convenient for employer, employee and companion and the meeting takes place within 7 days.

6. Complaints to an Employment Tribunal: breach of the procedure

The ET will find for the applicant only where the employer has failed to comply with specified procedural requirements or based the decision on a ground not specified or incorrect facts. The ET can award compensation up to a maximum of 8 weeks’ pay, subject to a cap of £260 on a week’s pay (from April 2003). The ET may also order the employer to reconsider

Under the Act, the employee can make a complaint that the employer:

• failed to deal with the application under the prescribed procedure;
• refused the application on a ground other than one prescribed;
• rejected the application on incorrect facts.

A complaint cannot be made to an ET unless and until the employer has notified the employee of a decision to reject the application on appeal or commits a breach of the procedure.

The regulations provide that a breach of the procedure is:

• failure to hold a meeting to discuss the employee’s application or failure to hold an appeal meeting;
• failure to give proper notice to an employee of its decision about the employee’s application or decision on appeal.

The above apply even if the application has not been rejected or disposed of by agreement or withdrawn.

Time Limit

The time limit for bringing a claim is three months from the date the employee is notified of the decision on appeal or, where the complaint relates to a breach of the procedure, within three months of that breach. An extension of time may be given if it was not reasonably practicable for the complaint to be presented before the end of three months.

Remedies

Where the complaint is upheld the ET:

• must make a declaration to that effect;
• may make an order for reconsideration of the application, and
• make an award of compensation to be paid to the employee. This will be subject to a maximum of 8 weeks’ pay.

Complaint re breach of right to be accompanied

In addition, a complaint can be made in relation to:

• a refusal to allow the employee the right to be accompanied by an appropriate person or
• a refusal to allow an appropriate postponement to allow the representative to be present or
• a threat to refuse in either situation.

In these circumstances, only two weeks’ pay can be awarded.

Thus, no compensation is payable if the employer properly follows the procedure but still refuses the request, even where there are no objective reasons for such a refusal.There is also protection for the companion under Trade Union and Labour Relations (Consolidation) Act 1992.

7. Automatically unfair dismissal

It is automatically unfair to dismiss an employee if the reason or principal reason is that the employee:

- made or proposed to make an application for flexible working;

- exercised or proposed to exercise a right under the procedure;

- brought proceedings against the employer,

- exercised or sought to exercise his or her right to be accompanied;

Subjecting an employee to a detriment on one of the above grounds is also unlawful under ERA section 47C.

8. Sex Discrimination Act

Under the SDA there is no set procedure. The worker can make a request for flexible working at any time. She must show that there is a provision, criterion or practice that would be to the detriment of a considerably larger proportion of women than men, which is to her detriment and the employer must then show that this cannot be justified.

Most parents should claim under both the new procedure and the indirect discrimination provisions of the Sex Discrimination Act, although most women (rather than men) stand a far better chance of establishing that they have been indirectly discriminated against on grounds or sex or marital status.

Camilla Palmer, Palmer Wade
1-3 Berry Street, London EC1V OAA

cpalmer@palmerwade.com

0207 014 1440

3 February 2003

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