Legal clinic

Legal clinic

Over the past year, Workingmums.co.uk have noticed an increase in requests for employment law advice from our panel of employment law experts. These requests seem mainly to be linked to part-time/flexible working and range from flexible work refusals, difficulties with returning to work on a part-time basis following maternity leave and redundancies which seem to be linked to pregnancy and/or part-time status. We wondered whether this pattern was being repeated generally in the market. Are employers struggling to maintain a flexible workforce based on the current economic climate? Are working women bearing the brunt of this?

One of our employment law experts who have been answering some of your questions, Ruth Renton of Renton Associates believes this to be one of the unfortunate consequences of this climate. She will be holding a free legal clinic at Workingmums LIVE in London on 27 March. Anyone with an employment law issue they want to discuss confidentially can visit her stand and register for a free advice session.

Ruth says: “Based on the questions I have been answering, employers with reduced turnover seem to be struggling to operate with a flexible workforce and are looking to make cost savings by reorganising their workforce. The questions have ranged from: employers amalgamating one or two part-time roles into one full-time role and making part-time employees redundant; increasing the working hours of a part-time role which no longer accommodates childcare arrangements to refusing flexible working request for costs reasons and pregnancy/maternity leave issues including redundancy.

"Working mothers, who represent a large proportion of the part-time workforce, are bearing the brunt of these more restrictive arrangements. The questions also highlight that employers seem to be struggling and/or failing to comply with their employment law obligations when answering requests for flexible working or making other employment decisions - they seem to be calling the employee's bluff to see whether these decisions will be challenged by grievances or appeals.

"At the moment it is an employer’s market, unemployment is on the increase and employees are keen to try and keep their jobs, even with more restricted arrangements so they will often be forced to accept these new restricted arrangements because there is little alternative elsewhere.”

Ruth referred to the most recently published Employment Tribunal statistics which cover the period from July to September 2011. They show a 30% reduction in the number of claims filed at the Employment tribunal overall than the same quarter in 2009-10. While there was a 72% fall in the number of sex discrimination cases, over the same period, there was a rise of 49% in claims for unfair dismissal for subjected to detrimental/unfair treatment when asserting a statutory right and by reason of pregnancy (which includes maternity leave).

Ruth says that the questions she has answered recently for Workingmums.co.uk and the advice given to through Renton Associates tend to back these figures up. Part-time employees are concerned that they will not find another flexible job easily elsewhere so do not wish to rock the boat by raising a discrimination claim. If, however the part-time employee has been dismissed, the employee will be prepared to file a claim for unfair dismissal.

“All of these seem to suggest a pattern of employers trying to hold things together in difficult financial circumstances which means they are less able accommodate flexible working requests and/or a flexible workforce,” she says.

“There has certainly been an increase in requests for advice in redundancy situations where, for instance, part-time workers have been targeted. Employers calculate that if they lose the part-timers and consolidate a number of full-time roles they will save money, for instance, on National Insurance and holiday. However, employers fail to see that they are losing experience and talent and that part-time women are often more committed and loyal and are prepared to give more value to a business and work longer than their part-time hours as long as there is flexibility. Many part-time working mums switch on their laptops and continue with their work after their children are in bed.”

Training
Ruth, who trains managers and employees how to manage and work together in compliance with employment law, promotes the benefits of a diverse workforce. She says the proposed Government reforms to open up flexible working to all employees, not just to carers with parental or care responsibilities, will allow all employees to embrace a better work-life balance and promote greater acceptance of flexible working in the workplace. Flexible working can increase staff motivation, build better relationships between an employer and its employees, increase staff retention rates, reduce absence, attract new talent, promote work-life balance and reduce employee stress, yet in doing so will improve efficiency and productivity.

Looking at the questions raised over the past year on the Workingmums.co.uk website by employees their employers seem only to “pay lip service to flexible working”. Ruth believes this needs to change. With an aging population, there is a strong likelihood that within the next few years many employees will have responsibilities to care for elderly parents, children and other relations, including grandchildren. Employers will need to provide adequate support and arrangements to enable these employees to work flexibly or face losing a huge loss of talent and experience as those employees will be forced to leave employment to care for their loved ones.

“The key is for employers and employees to be open to the full range of flexible work options and provide for them in their flexible working policy” she says.

New legislation

Ruth says that there is a conflict at the moment. While many employers seem to be financially struggling and taking cost-cutting steps which are adversely affecting part-time workers, the Government is consulting on changes to employment law to encourage a more fair and even more flexible approach at work. The consultation which is now closed is called “The Modern Workplace Consultation”. It asked for views on a variety of matters including a new system of flexible parental leave which will allow mothers and fathers to share leave, and give parents and employers greater choice about how leave is taken; and on extending the right to flexible working to all employees.

Ruth wonders whether employers in this current climate can accommodate these proposed reforms if they seem to be struggling to accommodate what already is in place.

Ruth says that “small employers already complain about their existing obligations and the Government is considering exempting small employers with less than 10 employees from certain aspects of the unfair dismissal laws. Smaller employers will find it more difficult to accommodate these new changes.”
 
She adds that smaller employers have always struggled with maternity/adoption leave absence as they struggle to find appropriate cover. More recently small business raised concerns about additional paternity leave. Additional paternity leave has, however, not been utilised by the majority of fathers, mainly because it means a huge loss of pay – fathers are only paid additional paternity leave at the additional statutory paternity rate of approximately £129 per week. Ruth wonders how small employers will be able to take on board the huge requirements of flexible parental leave under the proposed consultation.

The Government is seeking to change the parental leave system and create one type of parental leave which will encompass existing maternity leave, paternity leave and parental leave. The EU has passed legislation extending unpaid parental leave from 13 to 18 weeks. This was supposed to become UK legislation in March 2012, but the Government has asked for a delay until 2013 because they want to look at extended parental leave within their plans for this new flexible parental leave.

“On the face of it, flexible parental leave sounds good as it means parents can share the leave after a baby is born. Practically, though, from an employers' point of view employees may only have to give two months' notice that they will take flexible parental leave. That can be hard to manage, particularly for small employers in the current market,” says Ruth.

The Government has delayed its response to the Modern Workplace Consultation from January to Spring 2012. Recent newspaper headlines indicate that the Cabinet is not in agreement about the creation of flexible parental leave.

“Once the Government's response to its Modern Workplaces consultation is published it will need to consider how this new system will interact with the Equality Act 2010 in terms of the various types of discrimination and consider whether new types of discrimination will need to be created to protect fathers/partners taking the balance of maternity leave,” says Ruth.

At present, additional paternity leave has raised its own questions, for example – should fathers on additional paternity leave be paid company paternity pay if company maternity pay is offered to mothers? Isn’t this sex discrimination against men? “Employers are becoming aware to the potential discrimination claims of not replicating company maternity pay schemes for fathers/partners taking additional paternity leave," says Ruth. "Again, in this current economic climate many employers will be considering reducing or removing discretionary company maternity pay rather than offering company paternity pay.

“In light of the proposed flexible parental leave suggested in the Modern Workplace Consultation what other protections will need to be put in place for parents taking flexible parental leave- eg redundancy of the father while on flexible parental leave?” asks Ruth. “Currently under the Equality Act 2010, there is specific protection against unfair treatment for women who are pregnant or on maternity leave, particularly surrounding redundancy. Shouldn’t these also be extended to men if they may face being made redundant while on shared parental leave?

“Like all other aspects of employment law which changes very quickly, we will just need to watch this space for further announcements” says Ruth.

There will be many employment law changes coming through this year, from extending the qualifying period for unfair dismissal claims from one to two years to the introduction of Employment Tribunal fees when filing a claim. Ruth mentions one other new development which has needed clarification for some time. It concerns surrogacy. Currently, surrogate parents do not qualify for maternity leave or maternity pay. Instead they may qualify for adoption leave if they have satisfied the eligibility criteria otherwise a surrogate mother will have to leave her job as there is no requirement of the employer to keep her job open. An estimated 70 women became mothers through surrogates last year and campaigners say they deserve the same rights as other women in the workplace.

A woman is suing her employers for sex discrimination and maternity related discrimination because she was refused maternity leave when she became a mother by surrogacy and started breastfeeding her baby soon after the birth. The Employment Tribunal has referred this case to the European Court of Justice for clarification. They are expected to give their judgement later this year. As Ruth says, "it's another one where we have to watch this space”.

*If you want to talk to Ruth about an employment law issue, pre-register for LIVE here and come along to her stand. She will give 15-minute free advice sessions during the day on a first come first served basis.


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