Audrey Williams, partner and head of discrimination at Eversheds, said the changes could cause complications for enhanced maternity pay schemes. These schemes can include above statutory-rate pay and a returner’s bonus, raising the question of whether these benefits should be extended to men who take flexible parental leave.
“The current paternity leave regulations started to take effect last year and few employers will welcome another overhaul of this complicated area of employment law and practice,” said Williams.
Helen Farr, partner at Pinsent Masons, said it is possible many employers will not be affected because take-up of the new leave structure could be fairly low.
“It is likely many male employees will not take this leave because they will be deterred by the financial impact of doing so,” she said. “It is likely that only in cases where the mother is the breadwinner will the father be able to take leave.”
Farr added employers might have problems in verifying an employee’s correct entitlement, especially if both parents do not work for the same organisation.
It is possible employers might make an overpayment to either parent and be forced to rely on employees’ honesty to know how much leave they are entitled to.
The proposed change to flexible working requests could create difficulties for employers managing competing requests from staff.
Refusing to grant a request could, if not handled correctly, open the employer to discrimination claims.
Eversheds’ Williams said requiring an employee to work full-time hours may discriminate indirectly against women, who are more likely to have childcare responsibilities.
It could also amount to a breach in an employer’s duty to make reasonable adjustments for someone with a disability, she said.
Clegg’s changes
In November, deputy prime minister Nick Clegg announced proposals for changes to flexible working, which are expected to be introduced in 2014 and 2015.
The changes include:
- Flexible parental leave, allowing parents to share up to a year’s leave to look after newborn children.
- Extending the right to request flexible working to all employees.
