Leaves of absence

Proposals on Shared Parental Leave and Flexible Working Unveiled

By Madeleine Jephcott

Family with a Baby.jpgThe UK Government has set out its plans for a new system of shared, flexible parental leave to be introduced in 2015 and confirmed that it will be extending the right to request flexible working to all employees from 2014.

These proposals originated from the Department for Business Innovation & Skills May 2011 Consultation on Modern Workplaces, which contained a number of proposals aimed at creating more flexible and family-friendly workplaces.

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Longer Leaves for Parents

As of 1 January 2012 the amount of leave available to employees in connection with parenthood increased. The supplementary maternity leave which a female employee may use after finishing the regular maternity leave (20-37 weeks based on the plurality of pregnancy) is currently 4 weeks in case of a single birth and 6 weeks in case of the birth of two or more children. The paternity leave available to an employee raising a baby has been extended too - it is 2 weeks now.

UK Employment Law Reforms - Latest Developments

By Madeleine Jephcott

Changes SignII.jpgIn the weeks since our previous review, in April, of recent and forthcoming legal changes affecting UK workplaces, the detail of some of the Government's reform plans has become a little clearer and some novel proposals have emerged.

The Queen's Speech

The Queen's Speech on 9 May 2012 heralded two bills that will overhaul significant aspects of employment law - the Children and Families Bill and the Enterprise and Regulatory Reform Bill.

The Children and Families Bill - not yet published - will include some of the reforms mooted in last year's Modern Workplaces consultation, although possibly not all of them. The Government's formal response to the consultation is expected shortly. The most significant proposals were:

  • A new system of flexible parental leave, designed to give parents more choice about sharing childcare responsibilities in the early stages of as child's life. In outline, the scheme is likely to entail the mother taking 18 weeks' leave at or around the birth, with the remainder of the current 52-week maternity leave period being reclassified as "parental leave" to be taken flexibly by either parent.
  • Extending the right to request flexible working to all workers who have been employed for 26 weeks, irrespective of the reason for the request. This would be based on the existing system for requesting flexible working for children/adult carers, retaining the current list of eight business reasons for employers turning down a request.
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Ill or Injured Workers - Can the Adequacy of Medical Information Be Questioned?

By Lisa Croxford and Courtney Ford

Employers managing ill or injured workers are often faced with medical information (including medical certificates or assessments) that is contradictory or insufficient.

Employers do not in all cases have to take this information at face value.

Recent decisions of Fair Work Australia have confirmed the importance of adequate medical information when determining an employee's ongoing employment.

The decisions illustrate that, where employees have been dishonest or have refused to assist in the provision of medical information, employers can legitimately act. However, where medical information does not clearly show that an employee cannot return to work, other action - such as seeking further medical information or accommodating an employee's incapacity - should be considered before termination.

Read the full post here.

What's New in Employment Law This April and Beyond?

By Richard Lister

BarometerII.jpgIt is official policy in the UK for most changes to employment legislation to take effect in either April or October each year. This article summarises both the reforms coming into force this month and the major Government proposals for the future currently stacked up in the pipeline.

The most noteworthy changes being implemented in April 2012 are as follows:

Unfair Dismissal Qualifying Period

In a highly controversial reform that was confirmed by the Government last October, the period of employment before an employee qualifies for the right to claim unfair dismissal has increased from one to two years. This applies only to employees who start a new job on or after April 6, 2012: employees already in employment on that date retain the one-year qualifying period.

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Relapse of Occupational Accident Causes a Postponement of Paid Annual Leave

By Jean-Benoît Cottin

European law rules that a worker does not lose his right to paid annual leave which he has been unable to exercise because of sickness (ECJ, 20 January 2009, Case. And C-350/06 C-520/06 Schultz-Hoff and Her Majesty's Revenue and Customs). The French Supreme Court rules likewise. When an employee has been unable to take annual paid leave during the year he was supposed to, because of absences related to illness, accident or occupational illness, the paid annual leave must be postponed after he returns to work (Cass soc., Feb 3., 2010, No. 07-41446; Cass. soc., September 28, 2011, No. 09-70612).

The judgment of 16 February 2012 decides accordingly that the paid annual leave should be again postponed when the employee has been unable to take the leave because of a relapse.

Note: The European Court of Justice rules that such a postponement is not infinite: national rules may set a temporal limit on the accumulation of unused entitlements to paid annual leave acquired during a period of unfitness for work. However, the period set by that limit must be substantially longer than the reference period in respect of which it is granted. Therefore, the Court considers that a carry-over period of 15 months, as the case submitted to the Court, may reasonably be envisaged as it is not contrary to the purpose of the right to paid annual leave, in that it ensures that that right retains its positive effect for the worker as a rest period (ECJ, 22 November 2011, Case. C-214/10, KHS).

[Cass. soc., February 16, 2012, No. 10-21300, FS-P + B]

Protection of Women on Reduced Working Time

The Ministry of Labour and Social Policy announced an official position that special protection due to reduction of working time after maternity leave is waived in the case of termination of employment due to reasons not concerning employees (e.g., elimination of a position).

Plans for Flexible Parental Leave Unveiled

By James Walters

Family with a Baby.jpgThe UK Government's latest employment law consultation paper, Consultation on Modern Workplaces (PDF), sets out plans to introduce a new system of flexible, shared parental leave. This would build upon the Government's decision earlier this year to implement the previous Labour administration's legislation on additional paternity leave with effect from April 2011.

Other proposals covered by the consultation include:

  • Extending the right to request flexible working to all employees.
  • Amendments to the Working Time Regulations 1998 (WTR) relating to annual leave entitlement and its interplay with sickness absence.
  • Mandatory equal pay audits for employers who are found by an Employment Tribunal to have discriminated on grounds of sex in relation to pay.
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Business Red Tape to be Cut

By Hannah Vertigen

CuttingRedTapeII.jpgThe UK Government has announced its intention to review and reduce the amount of red tape faced by business, including the planned extension of the rights to request flexible working and time off for training.

In a speech to the Federation of Small Businesses, the Secretary of State for Business Vince Cable revealed that the Government is planning a range of measures to help small businesses, including a public audit of almost 22,000 existing regulations. Part of the review will include:

  • repealing the regulations extending the right to request a flexible working arrangement to parents of 17-year-olds. These were due to come into force on 6 April 2011. As a result, the right to request flexible working will continue to be available only to parents of children aged 16 and under (and disabled children under 18) and certain adult carers.
  • not extending the right to request time off to train to firms with less than 250 employees. The extension had been due to take effect from April 2011, but had become doubtful following a government consultation last autumn.

The Government is also intending to impose a moratorium exempting businesses with fewer than ten employees and "genuine start-ups" from new domestic regulation for a period of three years. Such businesses will, for example, be exempt if the Government presses ahead with plans to create a new, flexible system of shared parental leave, or extends the right to request flexible working (see above) to all employees. The Government intends to consult on both of these proposals later this year.

Photo credit: ODonnell Photograf

Quebec Government Introduces Organ Donor Leaves

The Quebec government has introduced Bill 125, An Act to facilitate organ and tissue donation. If passed, the Bill would amend An Act respecting labour standards to provide a unpaid leave of absence of up to 26 weeks to workers who donate organs or tissues. After an organ donor leave, the Bill would require employers to return workers to their prior position at the same wage rate and with the same benefits.