Written evidence from Dr Michelle Weldon-Johns (CFA0084)

HOUSE OF LORDS CHILDREN AND FAMILIES ACT 2014 SELECT COMMITTEE INQURY

Response to the Children and Families Act 2014: Call for evidence. Dr Michelle Weldon-Johns, Senior Lecturer in Law, Abertay University

1.   In this response, I focus on the questions relating to shared parental leave (SPL) and flexible working. I am a Senior Lecturer in Law at Abertay University and have been publishing research on work-family rights and the new and emerging boundaries of work-life conflict since 2010. This response draws from my research expertise and interest in this area. It also draws from the research that I am undertaking in relation to a broader project on ‘Regulating the Boundaries of Work-Life Conflict’, which includes an examination of work-family rights in the UK.

Is the system of shared parental leave and statutory shared parental pay functioning adequately?

2.   The system of SPL and statutory shared parental pay (SSPP) is not widely used,[1] reinforces traditional gender roles,[2] and is more likely to make it difficult for working parents to share leave in practice. The right is framed in such a way that fathers do not have an independent right to childcare leave, since it is dependent on both them and the child’s mother meeting the qualifying conditions for leave and the mother curtailing her maternity leave to enable the father to take SPL.[3] This reflects their secondary caring role,[4] and is reinforced in the case law on SSPP, which draws clear distinctions between the purposes of SPL and maternity leave. In Capita Customer Management Ltd v Ali the Court of Appeal held that a man exercising SPL was not in a comparable position to a women on maternity leave since the purpose of maternity leave is not primarily childcare, but to prepare for birth, recover from pregnancy and childbirth, develop a special relationship between the mother and child, facilitate breastfeeding and to provide care.[5]  While it is important to ensure that the rights of pregnant workers and those exercising maternity leave are protected, it is disappointing that the way in which the legislation operates in practice further entrenches fathers as secondary caregivers rather than providing them with a more defined caring role.[6] This is reinforced in Price v Powys County Council in which the EAT, following Ali, held that a man exercising SPL was also not in a comparable position to a women exercising adoption leave.[7] The EAT held that the purpose of adoption leave extended beyond childcare and included developing a bond with the child, creating a family, and creating and providing an appropriate environment for the child to live in.[8] In these respects, it was more akin to maternity leave than SPL, which is exclusively for childcare purposes. It is perhaps this conceptualisation of SPL that is most problematic because it appears to presume that the father does not similarly need to develop a meaningful bond with the child. Any revisions to SPL need to reflect on this reality and ensure that fathers are recognised as independent caregivers.
3.   The unfortunate consequence of this is that it continues to reinforce mothers as primary caregivers by undermining fathers’ caring roles and making it more difficult for families to choose alternative arrangements in practice. While in Price reference was made to the choice that SPL affords parents in relation to childcare,[9] it ignores the reality that this choice is limited because leave the qualifying conditions and low levels of pay make it difficult for fathers to utilise.[10] A revised framework of SPL and SSPP would be welcome, but it must place both parents on a more equal footing and afford fathers with meaningful and independent rights to childcare leave.[11]
4.   To be both meaningful and independent, a revised framework should: enable all employees to access SPL as a day-one right; enable working fathers to access the right independently of the mother’s rights to leave; and should entitle working fathers to comparable levels of statutory pay to those received in an equivalent period of maternity leave. These changes would reinforce that: new fathers are equally entitled to time off work for childcare responsibilities as new mothers; fathers’ rights to leave should not be dependent on the working status of the mother, nor should they necessarily require mothers to curtail or commit to curtailing their leave in order for fathers to take time off work; and fathers also need to be adequately compensated to enable them to be able to access the rights in the first place.[12] Such changes would recognise that fathers’ rights to childcare leave should also be considered to be non-negotiable.[13]
5.   The main problem with the current right to SPL is that it essentially requires the mother to ‘give up’ some of her maternity leave to enable the father to care for the child. While this does, in principle provide families with the choice regarding childcare, the limitations discussed above make it unrealistic for many families to access the leave and make genuine choices. While the current right is not fit for purpose, it is also difficult to recommend entirely removing the right, which may offer flexibility for some families. Furthermore, I do not think that it is appropriate to revise the current right to maternity leave, which would possibly be necessary, to redesign the right, which could reduce the amount of maternity leave that a mother can utilise. Therefore, I recommend enhanced independent rights for fathers alongside the right to SPL.
6.   The UK could draw inspiration from the revised rights to parental leave and pay contained within Arts.5 and 8 of the EU Work-Life Balance Directive (WLBD), as well as the right to paternity leave in Art.4.[14] While the parental leave provisions correspond to the UK right to unpaid parental leave[15] rather than SPL, it could be utilised in the latter context instead. Under Art.5(1)-(2) WLBD each parent is entitled to four months’ leave, two of which are non-transferable. Parents are entitled to some form of payment or allowance during the non-transferable leave period,[16] which ‘shall be set in such a way as to facilitate the take-up … by both parents.’[17] While this does not guarantee full wage replacement, it does mark a step forward in recognising fathers’ rights to childcare leave.[18] This is further underscored by the requirement that member states adopt the necessary measures to ensure that parents can request to utilise parental leave flexibly.[19] This is also likely to make parental leave more accessible to working fathers, who may be less able to utilise it full-time, either because of financial or workplace pressures.[20] Alongside these revisions is the introduction of a day-one right to paternity leave per Art.4(2). While this is not replicated in the parental leave provisions, which still allow for length of service criteria per Art.5(4), this approach could be reflected in any revisions to SPL.
7.   I recommend that elements of these revisions be incorporated into either the current rights to paternity leave and pay and/or SPL and SSPP. Similar results could be achieved by either introducing a period of non-transferrable SPL for fathers into the existing SPL framework, or by extending existing rights to paternity leave. The potential problem with the former approach is that it could result in recommendations to reduce the overall period of maternity leave, since the existing right to SPL corresponds with the mother’s remaining entitlements on the curtailment of her maternity leave. This would be undesirable in practice. Alternatively, the right to paternity leave could be extended and rights to pay could be enhanced, thus enabling fathers to take longer periods of leave during the child’s first year. This would be a much easier way of extending the independent, non-transferable period of leave to fathers, while ensuring that existing rights to maternity leave are not compromised.
8.   The paternity leave period should be increased by up to 2 months and the utilisation period should be extended to the child’s first birthday. This would substantially enhance existing rights to leave, which only entitles working fathers to 1 or 2 consecutive weeks leave that must be taken up to 56 days after the birth or adoption the child.[21] It should be a day-one right to leave, which would make it more accessible to all working fathers. Alongside these changes the right to paternity pay should be enhanced to mirror the rights to maternity pay with a period of enhanced pay followed by the statutory amount. Given that the current enhanced period for maternity pay is 6 weeks at 90% of earnings,[22] the rights to paternity pay could equally be extended to 6 weeks at 90% of earnings with the remaining 4 weeks being paid at the statutory amount.
9.   If the right to paternity leave was revised to become a day-one right, the right to SPL should also be revised to reflect this. This would ensure consistency between the provisions and make it easier for both employers and employees to understand the rights and how they operate in practice.

Is the system of flexible working functioning adequately?

10. While the right to request flexible working has been extended since its original enactment to now include all employees with 26 weeks continuity of employment,[23] and enables them to request a change in their hours, times or place of work,[24] there are still fundamental limitations within the legislation. These include: the continuity of employment requirement; the focus on employees; the limitation to one request per year;[25] the fact that it is only a right to request and not a right to be granted flexible working; and the fact that the employee must consider the impact of their request and how this can be addressed.[26] The obligations on the employer are less burdensome, with the employer only required to deal with the request in a reasonable manner and inform the employee of their decision within 3 months.[27] It is also relatively easy for an employer to refuse a request given the wide-ranging grounds for refusal,[28] and there are limited remedies since the decision to refuse the request cannot be challenged. A case can only be brought to the ET if there was a failure to comply with s.80G(1), the decision was based on incorrect facts or there was a failure to comply with the notification provisions.[29] Consequently, there are insufficient legal remedies available under the current legislative framework.[30]
11. This means that the right to request flexible working is not as accessible as it could be.[31] This is particularly the case for new employees, making the right inflexible and inaccessible to many in practice. Making flexible working a day-one right, as proposed in the Making Flexible Work the Default Consultation (MFWD),[32] would help to normalise flexible working by making it easier to request.[33] This could facilitate a cultural shift and challenge the unencumbered male worker norm that has long been the subject of UK labour law.[34] This could also help address some of the challenges that working parents/carers face when deciding not to make a request. Research by Working Families highlighted that while most parents wanted to work flexibly (86%), far fewer actually did (49%).[35] The main reasons given for not doing so related to workplace cultures and support for flexible working,[36] which a move to a day-one right could help to challenge.
12. Another issue is the availability of temporary changes. While it has been acknowledged in the MFWD Consultation that the current legal framework does allow for temporary changes to be requested,[37] this has not been widely acknowledged or well-understood in practice. Consequently, in most instances when a request is made it results in a permanent change to working arrangements. This is unhelpful in situations where a short-term change is required or preferred, or where employees might benefit from increased flexibility that may be difficult to plan for in advance.[38] While the MFWD Consultation indicates that this is possible, the legislation could provide greater clarity on this.[39] Furthermore, it should also be recognised that while there may be times when the parameters of a temporary request can be defined in advance, this will not always be the case. This uncertainty would make it difficult for an employee to make a temporary request. Allowing for greater flexibility here would also help employees to make temporary changes, for instance, that could be reviewed periodically rather than requiring that they be precisely defined in advance.
13. Article 9(3) WLBD specifically includes the right to make a temporary change and return to your previous working arrangements at the end of the agreed period. It is also possible for an employee to request to return to their previous working arrangements earlier than agreed, where it can be justified on the grounds of a change of circumstances. While there will be instances where employees will need a longer period of temporary leave rather than a shorter one, the legislation at least explicitly addresses temporary requests and recognises that circumstances can change. While this should be possible under the current UK legislation, there is no guarantee or right to return to your previous working arrangements. Instead, this kind of flexibility would have to be negotiated when the request is made. Including specific provisions on this in the legislation would clarify the position and provide certainty and protection for employees seeking such requests. This may also make it more accessible to working fathers.[40]

In light of the changes to working styles brought about by the COVID-19 pandemic, what changes, if any, are needed to provisions in the Act on flexible working?

14. The pandemic has clearly demonstrated that many jobs can be undertaken on a flexible basis. It has particularly underscored that many employees can work effectively from home or remotely and that greater control over working time can be beneficial for many employees, including those with caring responsibilities, as well as their employers. However, it is also important to bear in mind that this is not the case for all employees and all roles, particularly those in customer facing and public sector roles. The experiences of lockdown during the pandemic also had significant implications for working women with caring responsibilities,[41] and while flexible working can play a role in addressing these challenges, it is only one aspect of the responses required. Another is greater recognition of the role of working fathers,[42] which revisions to the right to SPL could help to achieve. It is also important to bear in mind that flexible working does not necessarily translate to home working (as primarily experienced during the pandemic) and that other forms of flexibility may be more effective for certain groups of employees.
15. Some of the suggestions in the MFWD consultation could improve flexible working and how it operates in practice. For instance, the proposed requirement for employers to consider alternative flexible working arrangements when rejecting a request for flexible working[43] could make it easier for employees to achieve alternative working arrangements and for employers to retain valuable employees within the workforce. However, for this to be effective, it must encourage and facilitate a dialogue between the employer and employee about the request, with the aim of trying to reach an agreement.[44] It should also be clear that this is used only when the employer cannot grant the request in full, rather than making it easier for employers to refuse requests. This could be mitigated with the inclusion of a presumption in favour of granting requests.[45]
16. Reducing the minimum period between requests[46] would also be beneficial and would make the right more flexible and responsive to the changes, particularly unexpected ones, that employees may experience throughout their working lives.[47] In response to these questions in the MFWD Consultation, I indicated that it would be better if there was no limit on the number of requests that can be made. While I appreciate that it could be difficult for employers to respond to continuous requests, if the new statutory scheme makes it clearer that there should be a negotiation between the parties when requests are submitted, I think that it is unlikely that an employee would need to make multiple requests. However, it should be flexible enough to respond to an employee's changing circumstances.
17. However, even if these recommendations are all enacted, there will still be some limitations within the revised right. For instance, the focus remains on employees rather than other categories of working persons; the consultation rules out revising the right from a right to request, to a right to have flexible working.[48] While it is perhaps understandable that employers should retain a degree of discretion over requests to work flexibly,[49] it is disappointing that there are also no recommendations to revise the grounds of refusal[50] or to enable employees to challenge the reasons for refusal, which would ensure that employers made informed and justifiable decisions in practice.[51] Addressing these issues would make the right more meaningful in practice.

May 2022

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