Last year, we set out a detailed article on the rights individuals have to various types of parental leave, and how this leave applies to LGBT+ families. As it turned out, 2020 was no ordinary year and two weeks after the last LGBT+ Adoption & Fostering week, the UK went into its first national lockdown due to the COVID-19 pandemic.
One year on, in the midst of the latest (and hopefully last) lockdown, what do parents, LGBT+ or otherwise, need to know about their rights in the post-COVID-19 landscape?
The closure of schools, remote learning and working from home have all been new challenges faced by parents during this past year. The roles of parent, teacher, playmate and employee have all largely been performed within our own four walls. With these new demands, there is a much keener focus on flexible working. Even prior to the pandemic, flexible working was a top priority for employees whether they were parents or not.
What rights do employees have to request flexible working?
The right to request flexible working is not new, nor is it limited to parents. The most recent statutory framework on flexible working has been in place within the Employment Rights Act 1996 since 30 June 2014. These rules mean that employees with 26 weeks' continuous service are entitled to request flexible working for any reason. This could include reduced, or compressed, hours or even working from home. An employee can only make one flexible working request in any 12-month period. Their employer must deal with their request in a reasonable manner and notify the employee of the outcome within a three-month timescale. The statutory regime is also supported by an ACAS statutory Code of Practice.
Once a request has been received, an employer can only refuse a request on one or more of the following grounds:
- the burden of additional costs;
- detrimental effect on ability to meet customer demand;
- inability to reorganise work among existing staff;
- inability to recruit additional staff;
- detrimental impact on quality;
- detrimental impact on performance;
- insufficiency of work during the periods the employee proposes to work; or
- planned structural changes
Employers must act in good faith, in that they must genuinely consider that one or more of the statutory grounds for refusing the request applies. However, the rise of flexible working has often been met with resistance from some employers. It is anticipated that, post-pandemic, there will be an increase in flexible working requests. Many employers are already considering blended working arrangements where employees continue to work part of their time at home and part of their time in the office in the future.
Changes to flexible working – a day-one right?
Currently, employees must have at least 26 weeks’ continuous service to be eligible to make a flexible working request. The Chartered Institute for Professional Development (CIPD) has launched a new campaign calling for the right to request flexible working to be a day-one right for all employees and for employers to advertise jobs as flexible. This comes after its research found that 50% of employees surveyed did not have flexible working arrangements, such as flexi-time and part-time working. Furthermore, 20% of respondents revealed that their organisation did not offer any flexible working arrangements at all.
The CIPD's proposal echoes calls previously made by the Equality and Human Rights Commission and the TUC for the right to request flexible working to be a day-one right. In the wake of the pandemic, there is likely to be more development in this area.
Leave for unpaid carers
As well as general rights to request flexible working, on 16 March 2020 the Department for Business, Energy and Industrial Strategy (BEIS) opened a consultation seeking views on its proposal to give employees who are unpaid carers one week's unpaid leave per year. This would be for the purposes of caring, with the aim of supporting those who struggle to manage providing long-term care to others with their own employment.
The consultation closed on 3 August 2020 and the government response is awaited.
Parental bereavement leave
The Parental Bereavement (Leave and Pay) Act 2018 also came into force in April 2020.
Bereaved parents, whether biological or adoptive, now have the right to two weeks of leave to be taken within the first 56 days following the loss of a child under the age of 18, or a stillbirth after 24 weeks of pregnancy. Bereaved parents will be entitled to take their leave in one two-week block or in two separate blocks of one week. Those employed with a minimum of 26 weeks’ continuous service will also be entitled to receive statutory parental bereavement pay which is currently the lower of £151.20 per week or 90% of salary. Those with less than 26 weeks' continuous service will be entitled to take two weeks of unpaid leave.
For better or worse, the pandemic has blurred the boundary between work and caring responsibilities at home. Many employees and businesses have had to adapt quickly to new ways of working from home, and in fact this new flexibility may be one of the few positives of the past year.
In any case this has shown parents, adoptive or biological and others with caring responsibilities that a different way of working is possible. Once the UK has had the chance to recover we can expect that the next few years will see strong a push towards flexibility for all in the workplace.
How can we help?
If you have any questions in relation to your employment rights or family leave entitlements, please do not hesitate to contact a member of our specialist Employment team.