James, 'Work and Parents: Competitiveness and Choice'

© Copyright 2001 Grace James
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

The main aim of this comment is to assess the Government’s recent family-friendly initiative, ‘Work and Parents: Competitiveness and Choice.’ The proposals relating to a) maternity rights, b) parental and paternity leave and c) flexible working are outlined in turn and considered in terms of whether they offer a realistic policy that will help parents to balance the demands of child rearing and employment. I suggest that whilst this latest initiative is clearly a significant step forward, overall it offers a superficial solution to a problem that requires much more. Indeed, ‘real’ improvements in the everyday lives of working parents can only occur when family-friendly law reform is based upon a fundamental appreciation of the difficulties involved in, and importance of, parenting within families and for society as a whole.

1. Introduction

In recent years a whole host of family-friendly initiatives has been implemented within the ambit of UK employment law, perhaps reflecting what Collier termed ‘a “new mood” or attitude towards work in the 21^st Century’ (Collier 1999 p167). Examples include the Working Time Regulations (SI 1998/1833 and SI 1999/3372), which provide the first major code for regulating working hours in the UK, currently restricting workers to a 48 hour week (Reg 4(1)), although the use, amongst employers, of the available opt-out clause (Reg 5) has somewhat undermined the potential of this legislation (for an interesting comment see Barnard 2000). Closely related to this is the National Minimum Wage Act 1998 which set the single hourly rate of pay at £3.60 (now, £3.70). More recently, the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations (SI 2000 No 1551) have been introduced to prohibit employers treating part-timers less favourably than full-timers (see McColgan 2000a).

A further example of the family-friendly legislation of New Labour is the Maternity and Parental Leave etc Regulations SI 1999 No 3312 (the 1999 Regulations) which were introduced under the Employment Relations Act 1999 s76 (ERA 1999) implementing Council Directive 96/34/EC. The 1999 Regulations, which came into force on December 15^th that year, have improved maternity rights and provide unprecedented (in the UK at least) provisions for parental and emergency domestic leave (for comment see McColgan 2000). Recently though, the law relating to maternity and parental leave has been the subject of a Green Paper, ‘Work and Parents: Competitiveness and Choice’ (Cmnd 5005 December 2000). The main aim of the proposals in this recent consultation document is, according to Stephen Byers, to help us ‘achieve a society where being a good parent and a good employee are not in conflict’ (foreword p1). This clear expression of family-friendliness is to be commended as it suggests a desire to provide optimum conditions for working parents to balance the competing demands of families and employment, but can the proposals really help us to create such a society? This comment assesses the scope and potential of this latest governmental foray into the parenting / workplace dichotomy. The current law and the proposed reforms are outlined and commented upon in relation to three specific but interrelated areas (maternity rights, parental and paternity leave, and flexible working provisions). Throughout, I highlight why, despite grand platitudes and commendable ambition, this latest offering from New Labour promises little that will substantively alter the lives of working parents in the UK.

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2. Maternity rights

Current Law

Currently, maternity rights in the UK are amongst the most inadequate in Europe (see National Family and Parenting Institute Report 2000). However, as far as the national context is concerned, the legal rights available to pregnant employees and new mothers have (largely because of our obligations under EC law) improved considerably in recent years. Two levels of leave entitlement exist in the UK: Ordinary (previously ‘general’) leave and additional (previously, ‘extended’) leave. All female employees are now entitled to 18 weeks ordinary maternity leave (1999 Regulations reg.4 and 7), and, so long as the notification requirements (ss74 – 75 Employment Rights Act 1996 (ERA 1996) as amended) are complied with, contractual rights continue throughout the leave (s71 ERA 1996). The subsisting contractual rights do not however include remuneration, which, under reg.9 of the 1999 Regulations, is now defined as ‘sums payable to an employee by way of wages or salary.’ Of course, the employee will, if eligible, be able to claim Statutory Maternity Pay (which is 90% of her average weekly earnings) for the first six weeks and the flat rate of £60.20 for the following twelve weeks of her leave.

The notification requirements (upon which the right to ordinary maternity leave depend) have been simplified under the 1999 Regulations, but are still, nonetheless, fairly complex. In order to avail herself of the right to ordinary maternity leave an employee has to notify her employer of the pregnancy at least 21 days (or as soon as is reasonably practicable) before she intends to be absent, and although entitlement to leave is no longer dependant upon notification in writing of the expected week of childbirth (with medical evidence if required), it must still be in writing if the employer requests it. The employee must also provide 21 days’ notice of the date she wishes to commence her leave. She must, in order to exercise her right to return, give 21 days’ notice of her planned date of return to work although this may be postponed by up to 4 weeks in the event of illness at this time. Failure to give this notice means that her employer may postpone her return for the requisite notice period. She has to confirm her intention to return (within 14 days of the request) if her employer requests her to do so within the last 3 weeks of her leave. Also, following the 1999 Regulations, she must provide 21 (as opposed to the previous 7) days’ notice if she wishes to return to work before the end of her 18 weeks’ entitlement (reg.11).

If the notice provisions are properly complied with, and the employee wants to return to work at the end of her leave, her employer cannot prevent her from doing so without contravening S.99 ERA 1996 (which automatically prohibits the dismissal of an employee for a pregnancy-related reason). The contract subsists during maternity leave by virtue of S.71 ERA 1996 and her statutory right to return is activated by her having complied with the statutory notification requirements. Problems arise when the notification requirements are not complied with and in such a situation the employee’s right to return to work is dependent upon the subsistence of the contract by general principles of contract law, and thus each case is decided upon its own merits (see McPherson v Drumpark House [1997] IRLR 277 EAT and Caledonia Bureau Investment & Property v Caffrey [1998] IRLR 110 EAT).

Whilst ordinary leave of 18 weeks is available to all employees irrespective of length of service or hours worked, employees with over one year’s continuous employment history (reduced from two years by reg. 5 of the 1999 Regulations) are eligible for additional (unpaid) maternity leave of 29 weeks from the beginning of the week of childbirth. However, the employee must, in addition to complying with the notifications required for ordinary leave, notify her employer (within 21 days) of her intention to return to work if asked to do so within the final 21 days of her ordinary maternity leave period (i.e. at the end of the first 18 weeks)(reg. 12). Prior to the 1999 Regulations the status of the contract during the additional period of leave (the 29 weeks from the date of the birth) and what constituted exercising the right to return to work were unclear and caused numerous problems for those who, for some reason (usually illness), were unable to return at the end of the additional period of leave (for example, see Crees v Royal London Mutual Insurance Society Ltd [1997] IRLR 343 EAT and Kwik Save Stores Ltd v Greaves [1997] IRLR 268 EAT, both of which were later overturned by the Court of Appeal [1998] IRLR 246 CA, applied by the Court of Appeal in Halfpenny v IGE Medical Systems Ltd [1998] IRLR 245 CA but, more recently, questioned by the House of Lords [2001] IRLR 96 HL). However, the 1999 Regulations extended the provision available in ordinary maternity leave through s71 ERA 1996 to cover the additional maternity leave period (reg.17), and it is hoped that this will lessen the difficulties experienced by many working mothers at the end of their leave.

Green Paper

This wide array of proposals, if implemented, could significantly improve the rights currently available to working mothers in the UK. At a general level, the idea of simplifying current maternity rights would be welcomed not only by employers and employees but legal practitioners, academics and the judiciary. Indeed, Mummery, LJ summed up the feelings of many disgruntled judges when (in Halfpenny v IGE Medical Systems Ltd [1999] IRLR 177 CA at para. 7) he suggested that

Whilst the 1999 Regulations have gone some way to improving the complexity of the notification requirements there is still a lot of ground to cover and the importance of this aspect of the Green Paper should not be underestimated. Legal representation at employment tribunals is not covered by legal aid, and women who feel they have a claim against their employers because of a violation of their maternity rights may well be deterred at the first hurdle, simply because the identification of the rights is so complex. Of course, the employee may consult a trade union representative (if she is a member) or the Citizens Advice Bureaux (or equivalent) but they may (given the comment above and the pace at which employment law changes nowadays) be equally out of their depth. In addition, it is worth remembering that these women, struggling to comprehend their rights, will, evident from the very nature of their complaint, be pregnant or have recently given birth, and therefore have other priorities to compete with the demands of understanding their rights and bringing an action within the relevant time limit. Simplification of this complex area of law may therefore have positive pragmatic repercussions upon a woman’s ability to exercise her rights in full. Of less positive potential is the proposal to lengthen the 21 day notification period. It is interesting that the law was amended under the 1999 Regulations so as to extend the notice required for early return to work from 7 days to 21 days. It is difficult to assess the impact, if any, this and any future lengthening of the notification requirement has upon new mothers but it cannot always be easy to predict (especially in financial terms) so far in advance when the need to return early will arise. In fact a notification requirement of longer than three weeks could arguably undermine the basic purpose of the entitlement to return early.

Furthermore, the idea of increasing unpaid maternity leave to a full year is, at best, a pleasant notion for those few who can afford to take up the offer. For most it is a utopian ideal. The very fact that so many mothers are currently in employment suggests that their income is a household necessity rather than a luxury extra. This is confirmed in a national survey of new mothers, which found that the main reason given for returning to work following maternity leave was financial necessity (Callender, C et al 1997 p150). That this ‘right’ could be shared between the mother and the father of the child is, for the same reason, equally unrealistic. The financial pressures of everyday life in the twenty-first century suggest that such a right would amount to a token gesture rather than a realistic option for most working parents. Indeed, at a time when total expenditure in the UK is, in real terms, three and a half times higher than in 1951 (Social Trends 2001 p93) and house prices (and thus, mortgages) are soaring (the average dwelling in England and Wales cost £94,600 in 1999 (Social Trends 2001 p175)), how many working parents can afford a year of unpaid leave?

More promising is the proposal to include adoptive parents within the maternity pay scheme and extend the eligibility criteria so as to include those who are at present not eligible for maternity pay. Also, the proposed rise to the flat rate of SMP, which is currently at £60.20 a week would have a real impact upon women’s ability to use leave entitlement. It would surely not be too difficult to improve upon this and ideally, the amount of maternity pay entitlement would be based upon a percentage of weekly earnings for longer than the first six weeks (as is the case in Austria, Belgium, Denmark, France, Ireland, Italy and Spain). The recent Budget proposal to increase the flat rate on maternity pay to £100 (from April 2003) and extend it for 26 weeks is clearly an improvement but does not go far enough to ensure the realization of a society where ‘being a good parent and good employee are not in conflict.’ (foreword p.1).

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3. Parental and paternity leave

Current law

Following the enactment of the 1999 Regulations, unpaid parental leave is now available for the first time in the UK⁽¹⁾ for all parentsof children born after December 15^th 1999 (reg.13). ‘Parents’ are defined as people named on the birth certificate or those who have acquired formal parental responsibility (reg.13) and the provision applies to employees with one year’s or more service with their employer (reg.13) and provides a maximum of thirteen weeks leave per child (reg.14). The leave has to be taken in minimum blocks of one week with a maximum of 4 weeks per year for each child, and leave can be taken until the child is five years old (reg.15) or eighteen years old where the child is disabled. Where the child is adopted the leave can be taken up to five years from the commencement of the placement of the child with the parents or up to the child’s eighteenth birthday, whichever is earlier (reg.15).

The Regulations provide a model default scheme, which is open for employers to improve upon by agreement (reg.16). Employees are required to give a minimum notice of four weeks if they intend to take up the right, but if they intend to take more than two weeks the notice given must double the amount of time of the leave (schedule 2). Parents must inform their employer of the exact day they wish to start the leave, the exception being where a father wishes to start leave as soon as the baby is born, or adoptive parents want to start leave once the child is placed with them (schedule 2). The employer can postpone the leave entitlement when the demands of the business make this necessary, but can only do so for six months from the date the employee originally wanted to take the leave (schedule 2). Employees will have the right to bring an action at an employment tribunal if treated less favourably because of taking leave and dismissal on that basis is deemed automatically unfair (reg.20).

Green Paper

The Green Paper does not proffer significant amendments to the parental leave provisions, but those that it does suggest are of great importance. For example, it proposes (at chapter 5 p9) that the amount of parental leave available to parents of disabled children be increased – a move that could undoubtedly benefit relevant parents and children alike. The full potential of the benefit is however unlikely to materialise unless the second, and arguably more important, proposal is given uppermost priority; that is the proposal (at chapter 5 p9) to provide payment for those who exercise their right to parental leave. Currently, the lack of pay for parental leave is its most obvious flaw. It has a severe limiting affect on the number of parents able to take up the offer of leave. It is perhaps significant that in countries where parental leave is paid, take up by fathers is fairly high. In Norway, seventy per cent of fathers who are entitled to a high rate of compensation do take some leave, and the figure is over fifty per cent in Sweden. Significantly, in Denmark, a reduction in the amount of state funded payments for parental leave has also meant a reduction in the number of fathers taking leave (TUC Memorandum 1999 p2). Overall, the current lack of payment has pragmatic repercussions upon the logistics of parents being able realistically to balance work and family life. The lack of payment is also detrimental because it sends out the wrong message to employees, employers and society as a whole, and, thus, reduces the potential symbolism of the law. It devalues reproduction and childrearing. As the TUC reports, payment for parental leave would “send an important message that looking after children is valued... and this may therefore in itself raise take-up rates” (TUC Memorandum 1999 p2). However, although the Green Paper does not give any indication as to how much pay is being considered it is clear from what was said above in relation to maternity pay, that payment must realistically reflect the wage of the parent. Otherwise, it will fundamentally undermine the potential of the underlying right.

Furthermore, there are two issues relating to parental leave that the Green Paper ignores and this is a major weakness of the reform proposals. Firstly, it ignores the fact that the basic scope of the parental leave provision is inherently limited. The amount of parental leave available must, under the UK provisions, be taken before the child is five years old. It is more than telling that the EC Directive (council directive 96/34/EC), from which the provisions originate, set the age at eight but allows member states to lower that age. A further and more legally questionable limitation is the fact that the provisions only apply to parents of children born after December 15^th 1999. By restricting the availability of the provisions in this way, an estimated 3.3 million parents of under-fives born before December 15^th 1999 are excluded (TUC Press Release January 19^th 2000). Such phasing in of the provisions is thought to be in breach of the parental leave directive because, contrary to reg.13 (3), the directive does not allow for such a cut-off date.⁽²⁾

Secondly, the Green Paper does nothing to remedy the fact that the parental leave provisions are only available to employees with one year’s employment history and this further restricts the potential scope of the provisions. The qualifying period clearly excludes a number of working parents from the benefits of the legislation. Given the rhetoric that surrounds the family-friendly provisions, and particularly the fact that one of its main aims is to encourage fathers to assume a more equal share of family responsibilities, it is surprising that the right has been limited in this way. Indeed, whilst working mothers with less than one year’s employment history will be able to spend some time with a new baby (because of the ordinary maternity leave provisions) this right is not necessarily available to a father with the same employment record, unless, of course, his employer offers more generous arrangements or he is able and willing to take normal leave at this time (see EOC Press Release June 20^th 2000). The Green Paper does not address this issue at all and yet, this, in conjunction with the limitations already stated, appears to restrict the scope of the legislation quite significantly.

The Green Paper does, however, recommend that fathers be entitled to paternity leave of two weeks at the flat rate of SMP (chapter 3 p8-10). The fact that this is even on the agenda (and has, since the beginning of the consultation process been announced in the Budget) is indicative of the journey taken by those struggling to include fathers within the parenting definition, but does the proposed reform go far enough? Whereas a minimum of 18 weeks’ maternity leave is available to all female employees, fathers are offered 2 weeks at a very low rate of pay. Surely though, the birth of a child is not simply a biological occurrence, but one that has important ramifications for the family as a whole and this should be reflected in the provisions? It is interesting that a proposal, suggested during the initial development of the Green Paper, to give fathers identical entitlement to leave and pay as women already receive, was immediately rejected by the Government for cost reasons (para.3.24). So, when the Government speaks of providing ways to ‘achieve a society where being a good parent and a good employee are not in conflict,’ its aim in reality is to create a society where only women are ‘encouraged’ to be ‘good parents’ and ‘good employees.’ Either, the criteria by which we measure the ‘goodness’ of fathers are different to the criteria used for mothers or the Government is of the view that men have already achieved this state of perfection? Indeed, whilst the Green Paper keenly highlights the contribution that mothers can make to the economy, the potential contribution fathers could (and should⁽³⁾) make to family life is not given anywhere near as much attention.

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4. Flexible working

Current law

The real test of any family-friendly policy is its ability to cater for diversity. Families come in a variety of shapes and sizes with particular demands and needs that change over time. What provisions are currently in place to support flexible working? At present opportunities for flexible working, such as flexi-time, job sharing, working from home and part-time hours, depend upon the particular employer’s willingness to adopt a flexible working environment. This is usually more readily available in the public sector than the private (Hogarth et al 2000) and more often taken up by women than by men (Hogarth et al 2000), although the latter might well be explained by the fact that it is women who tend to have to take low-status, poorly paid part-time or home-based employment due to their childcare commitments. There is no statutory right for women to return to work part-time following maternity leave although some have successfully claimed sex discrimination when prevented from returning on that basis (see e.g. Home Office v Holmes [1984] IRLR 13 EAT). However, the case law in this area is very ad hoc (see Annex E of the Green Paper: ‘Current case law for Part-Time Working’) and in desperate need of clarification. What then does the Green Paper propose?

Green Paper

The Government has put forward a number of suggestions to promote a more flexible approach to working. One option it suggests is to provide employers with better information and practical advice through an Internet site backed by a call centre (chapter 6 p8). It also considers the creation and promotion of a kitemark for display by those employers committed to a code on flexible working (chapter6 p8). It suggests offering a challenge fund to help small businesses adapt systems and train managers for flexible working (chapter 6 p9). The government is clearly keen, where possible, to maintain the current non-legislative approach and to encourage voluntary co-operation from employers rather than bestow a right upon the employee. How realistic is this though? The main concern is that those currently promoting flexible working will sign up for the scheme and those who currently practise non-flexible workplace practices will simply ignore it.

Fortunately, the Green Paper does put forward some more concrete alternatives in relation to parents who wish to opt for part-time work following the birth of a child. Firstly, it suggests the introduction of the right for mothers to work reduced hours until the end of their leave if they return to work early (chapter 4, p 5) but (in chapter 6) goes on to explain how this right could be qualified by allowing employers to refuse an individual’s request to work reduced hours where to grant it would cause harm to the business or, alternatively, to exempt employers with fewer than a pre-determined number of employees from the requirement. Secondly, it highlights the option of extending this right to fathers, but immediately exempts small employers from it (chapter 6, p 6). The most radical option put forward is the introduction of a right for both mothers and fathers to work reduced hours when the mother’s maternity leave ends, but again it is thought that this might be qualified by a refusal on the grounds that it would harm the business or/and the establishment of a small employers’ exception (chapter 4, p 6).

We are told in chapter 2 that ‘flexibility is the key’ to creating a family-friendly society and yet the proposals that are outlined to help create a flexible workforce are hardly ambitious. The general provisions are solely dependent upon the cooperation of a community whose long hours culture is the most family-unfriendly in Europe (see National Family and Parenting Institute Report 2000). The odds against the specific legal provisions outlined in relation to parents and part-time work having any positive effect are equally long. Here, what the Government appears to offer with one hand it takes away with the other. The right to return part time during maternity leave is subject to a harm test. A father’s right to spend more time with the family is dependent upon the size of the business he works for, and, likewise, any major alteration in favour of the adoption of a real work-life balance post-maternity leave is subject to damaging qualifications. Clearly, the ideal of being a ‘good parent’ and a ‘good employee’ is heavily weighted in favour of the latter.

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5. Conclusion

On the surface, current legal provisions for working parents appear to offer a great deal. Most importantly, the Green Paper continues to promote a change in culture where parenting is recognised as a significant job in its own right. However the suggestions, even if the most radical of proposals in the Green Paper are eventually implemented, do not go far enough. In fact, by offering ad hoc but fundamentally limited rights to working parents, the Government perpetuates a myth that equality now exists in the workplace but does little to help those parents who are struggling the most. More generally, what value is given to parenting in society when we offer no decent financial incentives to parents who wish to take leave? Provisions that remain unpaid or poorly paid ultimately suggest that work done in the private domain of the home is not as important as work conducted in the public place of employment. This, along with the limitations identified above, is, especially from the perspective of mothers, who are, after all the rhetoric, still likely to be the principal carers of any offspring, a recipe for continued competition and struggle rather than parenting/workplace harmony.

Overall, this reform proposal demonstrates how parenthood is still primarily perceived as a burden and an inconvenience to employment, as something that needs to be fitted into (or ‘balanced with’) the existing employment law mould; an uncomfortable appendage upon the ‘real’ issues that employment law seeks to address (see Conaghan 1999). Provisions, which are available in theory but not necessarily accessible to all parents, create an illusion that this Government is sensitive to the needs of working parents and their children. Yet if the importance of procreation is fundamental the only way forward is to ‘make a conscious and explicit decision on the social value of parenthood and to formulate legal rules to reflect this’ (Fredman 1994 p107). This Green Paper fails on both counts, and until the needs, difficulties and importance of parenting in the 21^st century are appreciated rather than merely tolerated,⁽⁴⁾ any reform proposal is limited in what it can ultimately provide. If we seriously want a society where parenting and employment can exist in harmony we need to re-evaluate our priorities, revise the way that we perceive the parenting / workplace dichotomy and ultimately re-tilt the balance so that the foundational premise of our reform agenda reflects the real experiences of working parents.

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Bibliography

Endnotes

⁽²⁾ The European Commission sent a letter of formal notice to the UK Government on April 3^rd 2000, and an action for judicial review was heard at the High Court on May 16^th 2000.The government in turn, has requested further clarification from the European Court of Justice (ECJ). Apart from the legality issue that this limitation raises, by requesting further clarification from the ECJ the Government has caused additional concern as the preliminary reference could take up to two years to be heard. Is this really the action of a Government keen to promote the importance of parenting in society?

⁽⁴⁾ Indeed, Medus, commenting upon the role of the concept of toleration in liberal theory stated that ‘toleration implies that the thing tolerated is morally reprehensible’ (Medus 1989 p149). Bauman describes toleration as a subtle and cunning way of ‘reaffirming the other’s inferiority’ (Bauman 1991 p8). Thus, if law advocates that parenting be tolerated within the workplace it, in effect, reaffirms the superiority of the public workplace over the private domain of parenting.

United Kingdom Journals

‘Work and Parents: Competitiveness and Choice’ Green Paper (Cmnd 5005 December 2000): A Policy to Promote Parenting / Workplace Harmony?

Grace James

Summary

Contents

1. Introduction

2. Maternity rights

Current Law

Green Paper

3. Parental and paternity leave

Current law

Green Paper

4. Flexible working

Current law

Green Paper

5. Conclusion

Bibliography

Endnotes

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