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Government acts to remove "gender bias" on parental leave and flexible working

A new system of shared flexible parental leave will allow parents to choose how they share childcare responsibilities in the first year after a child's birth, the Government has announced.13 Nov 2012

A new system of shared flexible parental leave will allow parents to choose how they share childcare responsibilities in the first year after a child's birth, the Government has announced.

Employment Minister Jo Swinson said that the change would remove the "gender bias" of current maternity and paternity leave provisions. The changes, which are expected to take effect from 2015, are intended to allow parents to play a "greater role" in raising children and to help mothers return to work "at a time that's right for them".

The right to request flexible working is also be extended to all employees from 2014, which the Government said would remove the "cultural expectation" that flexible working only has benefits for parents and carers.

Announcing the changes, Deputy Prime Minister Nick Clegg said that the new system would reflect the wishes of modern parents and create more flexible workplaces.

"Reform is long overdue and the changes we are making will shatter the perception that women have to be the primary care-givers," he said. "In the future, both mothers and fathers will be able to take control of how they balance those precious first months with their child and their careers. This is good news not only for parents and parents-to-be, but employers too who will benefit from a much more flexible and motivated workforce."

Under the new system, employed mothers will remain entitled to 52 weeks of maternity leave. However, after an initial two weeks' "recovery period" after the birth of the child they will be able to choose to return to work and instead share the remaining time with the other parent as flexible parental leave. Parents will be able to take leave in turns or at the same time, provided that they take no more than 52 weeks combined in total.

A new statutory payment for parents on flexible parental leave will be created, with the same qualifying requirements that currently apply to statutory maternity and paternity pay. Parents will be expected to give employers eight weeks notice of their intention to take leave in the form of a self-certified notice of their leave entitlement. The Government will consult next year on the detail of how the new system will be administered.

Fathers will remain entitled to two weeks' statutory paternity leave and will gain a new right to take unpaid leave to attend two antenatal appointments. The Government intends to keep existing paternity rights "under review" and may extend this period "once the economy is in a stronger position".

From 2014, all employees will also be given the right to request flexible working as a way of enabling them to manage their work alongside other commitments. The right currently applies to parents of children under 16 or disabled children under 18, and carers of adults, provided that they have at least 26 weeks' service. Employers will have a duty to consider all requests in a reasonable manner, but will be able to refuse requests on business grounds.

However employment law expert Selwyn Blyth of Pinsent Masons, the law firm behind Out-Law.com, questioned the relationship between wider rights and the Government's commitment to cut regulatory 'red tape' for small and medium-sized businesses. He also warned that companies could face "increased risks" when considering these requests.

"Currently, a woman with caring responsibilities whose request to work flexibly is rejected may bring a claim of indirect sex discrimination on the basis that a refusal has a greater negative impact on her as a woman because she is more likely to need flexible working arrangements to enable her to meet her caring responsibilities," he said. "Widening the pool of people who can make these requests also widens the indirect risks that employers face, as they may now need to prove that their decisions do not indirectly discriminate against employees on other grounds such as age, race or religious belief."

"It is quite easy for most businesses to follow the processes about whether to accept or refuse requests, but these indirect risks arise even where an employer has followed the process correctly - and they are often far more subtle, requiring professional help to avoid the pitfalls," he said.

Employment Minister Jo Swinson said that the new system would enable companies to get the best out of both male and female employees.

"Current arrangements are old-fashioned, inflexible and gender-biased," she said. "People should have the right to choose how they balance their work and family commitments. Extending the right to request flexible working will enable all employees to discuss flexible working with their employer, and move the discussion away from why the employee needs to work flexibly, and onto how flexible working will work for the business."

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