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Lecturer in Law, University of Reading.
([email protected]).

Copyright © Grace James 2003
First published in Web Journal of Current Legal Issues

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This paper comments on family-friendly legislation that has recently come into force. The relevant law, the outcome of two-years of consultations, amends maternity rights and pay and introduces the right to paid adoptive leave, paternity leave and the right to request flexible working conditions. The paper places the legislation in context by assessing the stated aims of the policy, before outlining and then exploring the content of the new measures. Whilst the changes are welcomed, it is argued that they do not live up to expectations or go far enough to help parents balance work and family commitments.

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The latest instalment of family-friendly provisions from New Labour came into force on 6 April 2003 and suggests an unprecedented (at least in the UK) commitment to alleviating the stresses of modern day family life. However, parents who have waited in anticipation for measures that promise to help us ‘achieve a society where being a good parent and a good employee are not in conflict’ (Green Paper, 2000) may be disappointed with the quality of the provisions now on offer. These new laws, despite their promising packaging, simply lack the substance necessary to make Britain truly family-friendly.

This comment, building on a previous discussion of the relevant Green Paper (James, 2001), outlines and assesses the content of the new law. Firstly, in order to set the scene, I briefly explore the main aims of the government in relation to the family/work balance 'problem'. Overall, I suggest that although the continuing ‘frolics’ of New Labour (McColgan, 2000) in this hugely important area of social policy are to be encouraged, these legal offerings provide only a glimmer of hope for a fraction of a largely overworked, mortgaged to the hilt, stressed population of parents in the UK.

These measures are the latest family-friendly instalment of the past few years. Since Labour came to office in May 1997 they have added to existing maternity provisions (see Maternity and Parental Leave etc. Regulation SI 1999 No 3312 which came into force in December 1999) and introduced various new family-friendly rights, such as the right to unpaid parental leave, the right to time off for dependants (both also part of the 1999 Regulations), rights for part-time workers (SI 2000 No 1551 introduced in July 2000), and the working time regulations (introduced in October 1998 – SI 1998/1833).

Consultation for the latest provisions began back in December 2000 with a Green Paper entitled ‘Work and Parents: Competitiveness and Choice’ (Green Paper, 2000) and are now provided for in the Employment Act 2002, amending the relevant sections of the Employment Rights Act 1996. In that document the government presented a number of options for reform of the law in relation to maternity rights, paternity rights, parental leave and flexible working, some of which have been included in the new measures (e.g. increased maternity pay and leave) and some of which, unfortunately, have not (e.g. the right for mothers and fathers to share the extended leave entitlement).

The Green Paper was, predictably, welcomed in some quarters (e.g. by the TUC and unions) but not in others (e.g. the CBI and the Institute of Directors). The idea of a right to reduce working hours following childbirth, which was arguably one of the most promising features of the initial Green Paper, proved to be the most contentious and divisive, prompting the government to set up a Task Force to iron out the differences of opinion (see DTI, 2001, available at www.dti.gov.uk/er/review.htm). The notion of ‘reduced hours’ was changed to ‘flexible working’ and what has emerged is a much weaker right than had originally been hoped for in some quarters (see below and Anderson, 2003). Hence the content of the new family-friendly measures has been limited from the outset. However, the legislation does still retain a superficial gloss to tempt the consumer/voter. Indeed, in its most recent document, ‘Balancing Work and Family Life: Enhancing Choice and Support for Parents’ (DTI, 2003), which introduces and outlines the new legal ‘rights’ in an accessible format, the government has added an extra layer of 'packaging' to the measures and, in doing so, shed further light on its overall policy ambitions. The government boldly claims to be ‘providing parents with more choice and support than ever before to balance family and work in ways that benefit everyone’ (DTI, 2003, Foreward). It goes on, throughout the document, to highlight what these benefits are, stressing how it might appeal to both parents and employers. For example, the government underlines its commitment to the family, stating that ‘it is in the family that we build the next generation’ (DTI, 2003, Foreward), thus suggesting an empathy with struggling parents, a sentiment that is reiterated in various ways in the other chapters.

In order to further tempt struggling parents, especially mothers, who are the usual focus of attention when it comes to family-friendly provisions, the government reassures us of its commitment to gender equality. It highlights its support for increasing the participation of men in family life claiming that this is ‘as important as increasing women’s ability to participate in the labour market’ (DTI, 2003, p.14). This angle was missing in the Green Paper and suggests that the government is, at last, beginning to view parenting as a non-gender specific occupation. This new spin ensures that the measures appeal to parents but a delicate balance also has to be struck so that the measures also appeal to employers. After all, their compliance with the provisions is crucial to their ultimate success. In order to woo employers, the government outlines the benefits of the measures for businesses (e.g. as a useful means of avoiding retraining and recruitment costs) and cleverly links the legislation to its own wider ambitions of improving industrial productivity by ‘a more effective use of human resources within the economy’ (DTI, 2003, p.22). It seems, at an initial glance, as though the new provisions have something to please everyone. The following section outlines the content of the law before I consider whether it is in fact likely to meet our expectations.

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The new family-friendly law has four mutually supportive sections. The Employment Act 2002 brings into fruition a number of changes which add to the existing rights in relation to maternity leave and introduces a new right to paid paternity leave, paid adoptive leave and the right for parents to request flexible working (see amended Employment Rights Act 1996 Part 8). A brief outline of the reform is provided below.

For women whose expected week of childbirth (EWC) begins on or after 6^th April 2003 the length of ordinary maternity leave is extended from 18 to 26 weeks. This is usually paid. Additional maternity leave (for those with over 26 weeks service by the 15^th week before the EWC) is extended by a further 26 weeks (starting at the end of the ordinary maternity leave period). This period is usually unpaid unless contractual conditions stipulate otherwise. She has to notify her employer of her intention to take maternity leave by the 15^th week before the EWC, unless it is not ‘reasonably practicable’ to do so. She has to tell her employer of her pregnancy, the week of expected birth and when she wants to start leave. She can change her mind about the leave date but has to inform her employer at least 28 days in advance (again, unless it is not ‘reasonably practicable’ to do so). There is a new requirement on employers to respond to the notification within 28 days. They have to set out the date the employee is expected to return to work and a model letter is provided to help employers fulfil this requirement.

There is no longer a requirement for the employee to notify an employer of her intention to return to work at the end of additional maternity leave, although s/he must now provide 28 days notice (as opposed to 21 days notice) if she wants to return before the end of the agreed maternity leave period. As before, if she is ill in the four weeks before the EWC then leave will start automatically. Statutory maternity pay (SMP) and maternity allowance (MA) will now be payable for the full 26 weeks of ordinary maternity leave and will increase from £75 to £100 per week (or 90% of woman’s average earnings if less than £100 per week). There is no change to the current earning-related rate of SMP payable for the first 6 weeks (90% of average weekly earnings), and existing rights which allow employers to recover SMP will continue. In fact, under the new measures, employers can, if they need to, claim payments in advance from the Inland Revenue.

Under the new law a right similar to maternity leave is available to adoptive parents. Paid adoptive leave of 26 weeks is to be available. Pay will be at the same flat rate as SMP and adoptive parents have the right to return to work following leave. Couples can choose which of them is going to claim the pay, and hence take the leave, but the other partner is still eligible to take advantage of the 2 weeks paid paternity leave entitlement (see below).

Paternity leave and pay is now available for employee fathers of children expected to be born after 6 April 2003. If expected before but born after 6 April the father will be able to take paternity leave but special arrangements are necessary regarding notice. Eligibility is conditional upon his having or expecting to have responsibility for the child’s upbringing, being the biological father of the child or the mother’s husband or partner (which includes same sex partners), and having worked continuously for 26 weeks leading up to the 15^th week before the baby is due. The employer can ask to see a self-certificate as evidence that he meets these requirements. If eligible, the father has the right to paid leave to ‘care for the child or support the mother’. Leave is for one week or two consecutive weeks (i.e. he cannot take odd days here and there). He can take leave from the date of birth or after the birth from a chosen date, and can start any day of the week, but leave must be taken within 56 days of the actual birth (or, if born early, 56 days from EWC).

There are notice requirements. The employee has to inform his employer by the 15^th week before the baby is due (unless not reasonably practicable) of the week the baby is due, whether he wishes to take one or two weeks’ leave and when he wants leave to commence. Again, as with maternity leave, he can change his mind but has to give 28 days notice (unless not reasonably practicable to do so). He also has to tell his employer of the date he expects any payments of statutory paternity pay (SPP) to begin at least 28 days in advance. SPP is paid for one or two weeks, and is, from April 2003, at the same standard rate as SMP (£100 per week or 90% of average weekly wage, whichever is less). Those with wages below the lower earnings limit for national insurance will not qualify for SPP, although they may be able to claim Income Support while on leave as well as help with Housing Benefit, Council Tax Benefit, Tax Credits or a Sure Start Maternity Grant. As with maternity leave, the employee’s terms and conditions of employment continue unchanged while he is on leave and he has the right to return to the same job. Men are also protected from detrimental treatment or dismissal because of claiming paternity leave, and can complain to an employment tribunal if they suffer at work as a result of taking advantage of their rights. As with SMP, SPP can be claimed back by employers at 92% to 100% of the payments made and those who need to can claim advance payments from the Inland Revenue.

The final section of the provisions is a wholly new offering; the right to request flexible working. Found in Part 8 of the Employment Rights Act 1996 (see too the Flexible Working (Procedural Requirements) Regulations 2002 SI 3207 and the Flexible Working (Eligibility, Complaints and Remedies Regulations 2003 SI 3236), it is available from 6 April 2003 to parents of children aged under 6 or of disabled children under 18. To be eligible employees must have worked continuously for 26 weeks at the date of the application, make the application no later than 2 weeks before the child’s 6^th birthday (or 18^th if disabled), have or expect to have responsibility for the child’s upbringing, and be making the application to enable them to care for the child. S/he must not be an agency worker or member of armed forces and must not have made a request during the previous 12 months.

If eligible s/he has the right to apply to work flexibly. For example, employees can ask for a change in the hours they work or to the times they are required to work or request to work at home, flexitime, job-sharing or term-time working. It may be a minor adjustment (e.g. starting half an hour later so that s/he can take the child to school and working half hour longer in the evening to make up for it). It is not however an automatic right. It aims, according to the DTI web site, to ‘facilitate discussion and encourage both the employee and the employer to consider flexible working patterns and to find a solution that suits them both’(http://www.dti.gov.uk/er/flexible.htm), but employers will be under a statutory duty to give the request serious consideration and are obliged to have a procedure in place for dealing with requests from eligible employees.

The employee must apply in writing, and the employer must arrange a meeting with the employee within 28 days of receiving the request. An employee can bring a companion / representative to the meeting, at which the parties are to explore the application and discuss options. Within 14 days of the meeting the employer must respond in writing, either agreeing a new work pattern and start date or providing clear business grounds for denial of the application. There is a list of grounds upon which an employer can deny the request, which include the detrimental cost implications and the inability to recruit new staff or re-structure existing practices. An employee has 14 days from the notification to appeal the decision. Only in a minority of cases will the employee have grounds to refer to ACAS or an employment tribunal or other form of dispute resolution. If a successful claim is brought, a tribunal can order that the request be re-considered and/or order that compensation be paid subject to a maximum of 8 weeks pay (Flexible Working (Eligibility, Complaints and Remedies) Regulations 2003 Reg. 7).

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The new measures appear to offer a little bit for everyone. Mothers get a few more weeks’ leave, a little more money and a 'right' to, albeit limited, help from the father (so long as he is willing and able to take advantage of the paternity leave right). Providing pay for paternity leave is of course practically important, and the eligibility requirements for the entitlement seem fair, although a sad reflection of the fact that there are those who will see it as an excuse for a paid holiday rather than a time to adjust to parenthood. Adoptive parents are now, rightly, fully fledged beneficiaries of the family-friendly offerings, and employers are not being asked to do anything hugely onerous apart from ensuring that they listen to an employee’s wishes for some flexibility.

The overall impression of the package is that it provides something worthwhile and pro-family, but there are a number of shortcomings regarding the quality of the measures. Rather than moving us forward towards a new era of ‘enabling parents to better fulfil their family responsibilities, when most need to combine these with work’ (DTI, 2003, Foreward) the legislation arguably highlights the limitations of the government’s overall family-friendly agenda for working parents. Firstly, in relation to maternity leave, the increase in the length of extended leave to allow mothers to stay at home for a full year is not as generous as it initially seems. Being unpaid, it is unlikely to present a realistic opportunity for most parents. The government itself highlights the rise in dual-earner couples (DTI, 2003, page 6 citing Gregg et al, 1999) and financial necessity is the main reason most women return to work following leave (Callender et al, 1997). Moreover, the original proposal in the Green Paper that this ‘right’ could be shared between mothers and fathers has been dropped. I argued at the time that such a right would have been unpractical anyway given the financial strains of modern-day living (James, 2001), but it might have been symbolically important given the stated aim of encouraging fathers to engage in more domestic responsibilities. Secondly, the extension of the notice requirements to 28 days in relation to the right to return early from maternity leave is disappointing. This is the second increase in the relevant notice period by New Labour. It was increased from 7days to 21 days in 1999, and now places an even heavier burden on new parents to predict in advance when the mother will need to return to work early. Surely the whole point of the right to return early is to cater for unforeseeable changes in domestic arrangements?

Thirdly, whilst the right to paid paternity leave is to be welcomed it is limited to 2 weeks maximum and is not related to pay in the way that maternity pay is (for the initial 6 weeks of the leave). This token perpetuates the assumption that the mother is (and should be) the primary carer of the child. Otherwise, why phrase the right in terms of leave to care for the child ‘or support the mother’? Overall, the length of time is too short. If I am cynical, it provides just enough time for the father to smoke a pack of cigars, wet the baby’s head, be appreciated as a ‘good dad’ by the in-laws and slip back to work once the novelty of the moment has subsided, leaving the mother to cope with the monotony of continual crying and nappy changing for a further few months until money gets so tight that she too has to return to work. If I am more optimistic, it provides the father with a brief insight into the ecstasy of parenthood and an opportunity to adjust to his additional domestic responsibilities, only to be catapulted back into full-time work once he has begun to appreciate the demands and joys that a new life can bring. Either way, this seems to contradict the aims of the legislation. Whilst New Labour have substantially increased the parental rights of mothers over the years, fathers have been left behind, suggesting that the true extent of the government’s commitment to ‘helping parents to balance their work and family responsibilities’ depends upon whether the parent in question is the mother or the father. This is not helped by the absence of change to the parental leave provisions, which remains unpaid and hence fairly low down the hierarchy of family-friendly provisions.

If we are serious about creating a society which enables families to better balance their work and family commitments this requires fathers to be more ‘hands on’ at home. I am not convinced that two weeks’ leave provides enough space, in a physical or a symbolic way, for men to realise their full parenting potential. Also, once the two-week leave is over the stereotypical roles of “breadwinner male” and “child-caring female” will quickly become the norm and difficult to overcome, placing additional strains on the family once the mother returns to work. This is especially true for the mother, who usually continues to bear the majority of the domestic chores once both parents are back at work. In fact research suggests that mothers spend twice as much time as fathers on unpaid work (OECD, 2001), which also has a detrimental impact on the mother’s lifetime earnings and career development. In fact, research conducted for the government shows that men with children are slightly more likely to work longer, not fewer, hours than men without children (DTI, 2003, p.10).

Fourthly, the flexible working ‘right’, cleverly marketed as the ‘surprise toy’ of the new legislation, is more than a little disappointing because it is limited in terms of its scope. It does not include agency workers and it was hoped that the government would widen access to this right beyond those who have the status of employee. It is also limited because it only applies to families with children under 6 years old. Of course there has to be a cut-off point but is parenting of older children less important? Is it not equally important that parents are able to balance their work / family commitments when their offspring go through the traumas of puberty and adolescence?

Fifthly, the flexible working provisions are unsatisfactory because of the weak enforcement opportunities that they provide. Ultimately, an employee can bring a claim to an employment tribunal if an employer fails to comply, and a tribunal can order that the request be reconsidered or/and award compensation but, as Anderson comments, the former is difficult to enforce (especially if the employer simply refuses to comply) and the latter is subject to a maximum of 8 weeks’ pay. This is a far cry from the 52 week maximum initially requested by the TUC and the unions (Anderson, 2003). Indeed, given the broad list of grounds upon which an employer may legitimately refuse a request for flexible working, it is unlikely that tribunals will be willing to judge the rights and wrongs of an employer’s decision and are likely to focus primarily on the procedural requirements of the relevant law.

On the one hand, this aspect of the general family-friendly policy could be viewed as a serious attempt to change the harsh realities of the British working culture. On the other hand, whilst it is of course going to prove successful in some quarters, especially where businesses are already flexible, the less conscientious employer will easily avoid the true aim of the provisions by simply showing that s/he has a procedure in place to deal with the request. Surely, employers who are unwilling to be flexible need more than a little gentle persuasion to change their habits? When basic and long-standing automatic rights, such as the right not to be dismissed because of pregnancy (under S.99 ERA 1996), are so blatantly ignored by so many employers on a daily basis (see e.g. Dunstan, 2001 and Leonard, 1999) how can we ensure that this non-automatic ‘right’ is adequately enforced?

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This package of measures is another attempt to change the culture of employment relations in the UK, which is renowned for demanding the most from its workforce (see National Parenting and Family Institute Report, 2000), but it lacks the courage and vision necessary to make Britain truly family-friendly. These policies are well meaning but fall short of what is needed. The government has missed an opportunity to re-tilt the balance a between family and work. It could have grasped this chance to place parenting on a much higher footing in its overall policy agenda. Instead it has opted for the safest route and provided a little for everyone but not much overall. In doing so, it has perpetuated many damaging dichotomies and stereotypes by promoting the sub-categorisation of ‘parenting’ so that its meaning in terms of rights is still determined, for the most part, by the gender of the parent. Mothers are entitled (and hence, encouraged) to give family commitments more time than are fathers. Indeed, the inclusion of adoptive parents as a separate branch altogether adds a further differentiation; this time between the rights available to ‘natural’ and ‘adoptive’ parents. The government is perpetuating a hierarchical framework that does little to promote the importance of childcare per se for society in general. (For further comment on the need to recognise the social function of parenting see Fredman S, 1997).

On a more positive note, the government is committed to reviewing the legislation in three years and these latest measures are only the latest instalment. The government itself refers to the provisions as a ‘step change in the level of support and choice available to parents’ (DTI, 2003, p23). In addition, there is a suggestion that the government might be moving in a more positive direction because the eligibility of employees to request flexible working (although limited) is not determined by the gender of the parent and applies to adopters, guardians, same-sex couples and cohabitants who are responsible for the upbringing of the child. The focus is not on whether the employee gave birth to the child or played a part in its creation, but upon whether s/he cares for the child. This is a much better premise for family-friendly initiatives, and one that will hopefully be built upon in future years. Indeed might we, in time, if this functional approach towards the family and caring is built upon, see the right extended to those who care for elderly relatives at home? The right to flexible working is a right that is arguably of growing interest to all workers – with or without dependant children / relatives - who seek a better work/life balance per se (see DTI, 2002, cited in Anderson, 2003, p.41). Whereas this latest offering lacks real commitment to the work/life problem it is, nonetheless, a small step in the right direction.

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Anderson, L (2003) ‘Sound Bite Legislation: The Employment Act 2002 and New Flexible Working ‘Rights’ for Parents’ 23(1) Industrial Law Journal 37.
Callender, C et al. (1997) Maternity Rights and Benefits in Britain 1996 Research Report No.67 (London: HMSO).
DTI (2001) About Time: Flexible Working (London: HMSO).
DTI (2002) More People Want Flexible Hours than Cash, Company Car or Gym, (London: HMSO).
DTI (2003) Balancing Work and Family Life: Enhancing Choice and Support for Parents (London: HMSO).
Dunstan, R (2001) ‘Birth Rights: A CAB Evidence Report on Maternity and Paternity Rights at Work’ (London: NACAB).
Fredman, S (1997) Women and the Law (Oxford: Clarendon Press)
Green Paper (2000) Work and Parents: Competitiveness and Choice Cmnd 5005 (London: HMSO).
Gregg, P et al. (1999) ‘The Rise of the Workless Household’ in Gregg, P and Wadsworth, J (1999) The State of Working Britain (Manchester: Manchester University Press).
James, G (2001) ‘Work and Parents: Competitiveness and Choice’ Green Paper (Cmnd 5005 December 2000): A Policy to Promote Parenting/Workplace Harmony? [2001] 2 Web JCLI.
Leonard, A (1999) ‘Pregnancy Discrimination Persists’ 87 Equal Opportunities Review.
McColgan, A (2000) ‘Family Friendly Frolics? The Maternity and Parental Leave etc. Regulations 1999’ 29 Industrial Law Journal 125.
National Parenting and Family Institute Report (2000) Is Britain Family-Friendly? The Parents’ Eye View (London: NFPI).
OECD (2001) Employment Outlook.