Work& parents, competitiveness & choice. DTI consultation on draftregulations: maternity, parental, paternity and adoption
GMB response
GMBwelcomes the opportunity to comment on these draft regulations and theoutstanding policy issues raised in the consultation document. We havecommented extensively on the areas covered by the Work
Thispaper sets out our response to the consultation questions, together with somecomments on the draft regulations and the model documents. While we have notrevisited many of the concerns we raised in earlier consultations, we havetaken the opportunity to raise some additional issues, which we hope theGovernment will consider before the regulations are finalised.
GMBwelcomes the Governments decision to recognise the particular needs of parentswhere a child is born prematurely.
However, we would not like to see fathers of prematurebabies (or those in an equivalent role) forced to wait until the expected weekof childbirth before they can start paternity leave. The clause whichever isthe later would appear to have this effect. Some parents in this situationwill wish to start their leave at, or soon after, the actual date of birth,while others will want to take it later to cover the childs homecoming.
What we want to achieve is that the 56-day window canrun either from the date of birth or the first day of the expected week ofchildbirth. We therefore suggest simply deleting whichever is the later afterexpected week of the childs birth, in draft regulation 4, paragraph 5 (1).
This amendment would have a second beneficial effect. Wehave argued in the past that fathers (or their equivalents) may sometimes needto take paternity leave earlier than the onset of labour, and that not all ofthese cases would be covered by time off for dependants. The amendment would gosome way to addressing this because it would mean fathers (or theirequivalents) could start leave in the EWC even if the child had not been born.Such provision would be helpful in cases where a mother needs support in thedays immediately prior to the birth because, for example, she is beingmonitored, confined to bed, kept under hospital observation, or having labourinduced etc.
Paras 14-16 Non-consecutive weeks of leave and pay
We have arguedthroughout that for statutory paternity leave to fulfil its stated objective that is allowing working fathers (or others in that role) to support mothersand new babies there must be flexibility in the scheme. A single block of twoweeks does not allow this flexibility. For example, in cases where mother andbaby are kept in, or readmitted, to hospital for any length of time the fathermay need to take time off at the time of the birth but then return to work,reserving leave for when mother and baby return home, and 24-hour maternitycare ceases. This is an absolutely crucial time for families as good help andsupport for mothers in the early days at home lead to fewer problems later on.
The incidence ofcaesarean sections is rising rapidly. Mothers who have had caesareans needextra help and support at home for the first six weeks after the birth, duringwhich they cannot lift, drive etc. A father (or equivalent) may need to reservesome leave to ensure support for mother and baby can be spread over thissix-week period.
The registrationof the birth can also be an important occasion for the paternity leave period.This has to be done within the first 42 days of the baby's life. There are manyreasons why parents do not do this in the first two weeks and many fathers (ortheir equivalents) wish to reserve paternity leave so that they too can attend.Furthermore, if the parents are unmarried, it is a requirement that the fatherbe physically present in order to be included as the father on the birthcertificate.
Current practice
As the Governmentis aware, we have previously argued for leave to be available, as is currentpractice in our agreements, in blocks of one day.
A recent surveyby Industrial Relations Services (EOR no 99 September/October 2001) found someemployers policies explicitly state that paternity leave can be takenseparably (eg Halifax: days do not have to be taken all at once but must bewhole days, Guys and St Thomass NHS Trust: can be taken as separate days)while many others leave open considerable discretion and flexibility as to howand when leave is taken. This pattern reflects the findings of an earliersurvey (IRS Employment Trends 646, December 1997) where companies such asBritish Aerospace and Hitachi Home Electronics allowed days to be taken singlyand TNT Express allowed leave in one or two blocks, while many others left theissue open, allowing leave when required or not specified or by agreementwith line manager
The proposal toallow two separable weeks would go some way to delivering flexibility and wewould argue that the administrative burden on employers of would be negligibleand indeed will be easier for small employers to cover using existing staff, thana single block of two weeks.
We realise that issues arise in relation to what noticeshould be required from an employee intending to take the second leave period.However, we maintain that there should be some provision for flexibility,recognising the uncertainties fathers (or their equivalents) face at thistime. We propose that this could bedealt with by following the precedent in the Working Time Regulations andrequiring notice to be given equal to twice the length of the period ofleave. This would mean that theemployee should give 14 days' notice to take a second week of paternity leave,or where this is not possible as soon as is reasonably practicable.
Webelieve that the proposal to allow adoption leave and pay to continue for 8weeks in these circumstances would in most cases be sufficient. However, theremight there be some circumstances in which the termination of the placement wasso traumatic that more than 8 weeks would be appropriate.GMB recognises that these are likely to be comparatively fewcases. However, in theinterests of consistency we believe that the full adoption leave period shouldbe available. As the rate of pay will only be 100 a week for 26 weeks, thereare likely to be very few employees who will take their full entitlement toleave and pay. But we believe that it is an important safety net, and asemployers will already have planned for that absence it should not cause themany inconvenience.
Whilewe generally accept the desirability of harmonising statutory requirements inthe interests of consistency, we cannot support this proposal. We believe thatthe Government could have considered harmonising at 21 days.
Take-upof parental leave rights is low chiefly because leave is unpaid, but alsobecause the fall-back scheme is inflexible, requiring leave to be taken inblocks of a week, after 21 days notice has been given, and subject to theemployers ability to postpone it. GMBs experience is that because parentalleave is unpaid, parents are less likely to plan it as a long-term option.Instead they are more likely to fall back on it when annual leave has beenexhausted, and occasions arise at relatively short notice, such asparticipation in events at a childs school or nursery, which do not meet thecriteria for time off for dependants.
Thistype of usage often makes the existing 21-day notice requirement difficult tocomply with, and we would not want to see the situation worsened by arequirement for 28 days notice.
GMBvery much welcomes the inclusive approach to entitlement which recognises thediversity of family relationships and particularly the rights of lesbian andgay couples who are parents. We believe that it is important to demonstratethat the statutory paternity leave scheme is intended to support the interestsof mother and child.
However,we are concerned that as currently worded the regulations require a projectioninto the future responsibility for the upbringingof the child in order to decide an immediate entitlement. We prefer thewording in the parental leave regulations (regulation 13 (1) (b)): has, orexpects to have, responsibility for a child, as we believe this is clearer andwould create consistency. But we are not seeking to import the specificdefinition of responsibility used in the parental leave regulations ie legalparental responsibility or named on the birth certificate. We believe that thiswould be disproportionate in relation to two weeks leave which must be takenin the first 2 months of a childs life. More importantly, it would beunworkable because legal parental responsibility (especially in the cases ofunmarried parents or non-biological parents) and registration on the birthcertificate will very often not have been established at the point at whichpaternity leave is taken.
Paras27-32 Consecutive periods of leave
Thepossibility of lengthy combinations of leave raises a number of complex issues,but we are not convinced that what the Government proposes is the right way todeal with it.
Belowwe have attempted to explore some of the issues.
Example1
Awoman returns from AML. Her employer cannot offer her her original job (Job A)but instead a suitable and appropriate alternative with terms and conditions noless favourable (Job A1). The woman is expecting her second child and shortlygoes off on OML again. She triggers a right to return to Job A1.
Example2
Awoman does not return to work between AML for her first baby and OML for hersecond baby. She triggers a right toreturn to Job A and is therefore better protected than if she had returned asher colleague in Example 1 did.
Example3
Awoman returns from AML. Her employer has held open her original job (Job A).The woman is expecting her second child and shortly goes off on OML again. Shetriggers a right to return to Job A.
Thewoman in Example 2 no longer has the right to return to Job A.
Ifthe woman in Example 3 chooses not to come back to work, between AML and OML(2) she would lose the right to return to Job A.
Weaccept that these scenarios may seem rather artificial. But we are seeking toillustrate the fact that the changes the Government is proposing might have theeffect of creating an incentive for a woman to return for a brief periodbetween AML and OML(2) in order to trigger a fresh right to return to the samejob.
Webelieve these issues do matter because it can be traumatic for a woman toreturn from leave and find that she no longer has her own job. And suchconsiderations become increasingly important the longer she is away from theworkplace. So she might use the option of returning for a short period betweenleaves in order to gain certainty and peace of mind as to exactly what job shewill return to. However, creating such an incentive is not only undesirable forher not least because it is likely to be at a late stage of pregnancy butcould be disruptive to an employer who wishes to keep the cover arrangements theyhave made.
Thisdiscussion serves to highlight the issue of notification where there is achange of job. There are currently no requirements for employers to notifytheir employees that they cannot offer them the same job on their return frommaternity leave. So there are instances of women returning to find that theirjob has changed. It is then up to them to decide whether they accept that thealternative job is suitable and appropriate with no less favourable terms andconditions, and if they do not accept this, seek redress at employmenttribunal.
Wesuggest that the Government should explore introducing a requirement foremployers of employees on AML to notify them with details of the job to whichthey will return. This notification could be required to take place 28 daysbefore the end of the AML period, or 28 days before the date for return thatthe woman has notified, if that isearlier. If an employee goes on to take another period of OML, this would triggerthe right to return to the job she wasnotified of 28 days before the end of her AML. The same approach couldbe applied to ordinary and additional adoption leave.
Webelieve there is general merit in requiring employers to notify employees ofwhat job they will return to as it will remove the possibility of an employeediscovering changes to their job on their first day back, and give them time toconsider whether it meets the suitable,appropriate etc requirements. We also believe it could offer one way of dealingwith the problems of consecutive leave the Government has identified.
Theconsiderations around paternity leave are different. The right is only to twoweeks leave. Instances of someone taking two consecutive periods of paternityleave are likely to be extremely rare. But in any case, this would amount to atotal absence of just four weeks, which, following the approach of the parentalleave regulations, should preserve the right of return to the same job. Othercombinations involving paternity leave being taken consecutively with anotherform of leave are again likely to be rare and we can see no reason why any linkshould be made which affects the right to return.
Interface with parental leave
Afurther issue is the interface with parental leave. The Government should adoptthe same approach as applies to maternity leave, ie that employees have a rightto take parental leave immediately following paternity or adoption leaveprovided the proper notice is given.
Asthe Government will be aware, GMB believes that employees taking periods ofparental leave longer than 4 weeks should also retain the right to return tothe same job. However, we would urge as a minimum that the Government followsthe approach under maternity regulations and preserves the right to return tothe same job for those taking paternity or adoption leave followed by parentalleave of 4 weeks or less, and the right to the same or similar, suitable,appropriate etc job for those going on to take more than 4 weeks of parentalleave.
Paras36-39 Treatment of terms of imprisonment
GMBwelcomes the Governments proposal to allow statutory paternity pay andstatutory adoption pay to continue during and beyond periods when the recipientis in custody. However, it serves to highlight the unfairness of existing SMPregulations, which withdraw payment during and after a mother is taken intocustody. GMB can see no justification for this, particularly for the loss ofentitlement upon release, as SMP is replacement income for normal earnings toallow mothers to support themselves and their babies. We understand thearguments about dual provision by the state which might justify suspension ofSMP during imprisonment, but they certainly cannot justify failure tore-instate SMP when a woman is released.
Weagree that asking employers to cease and then restart SMP is onerous. TheGovernment should therefore apply the same logic which it uses to argue thatSPP and SAP should continue for the sake of simplicity. The availability ofMaternity Allowance is, we believe, irrelevant to this discussion because it isa means-tested benefit paid to women who do not qualify for SMP. This meansthat many women will not qualify for it, and even if they do it will often bepaid at a lower rate than the woman is entitled to under SMP. We fully supportwhat the Government proposes on SAP and SPP, but if the current SMP rules areallowed to stand, birth mothers who have a period in custody will suffer apenalty which fathers and adoptive parents do not. This
Draftmodel documents: statutory paternity pay
Themodel document is not consistent with the wording of the regulations as regardsentitlement to leave and pay. The model document states you must be able todeclare that you
are in an enduring family relationship with the mother
will be responsible for the childs upbringing
Draftregulation 4 (2) requires that an employee:
(b)has or expects to have responsibility for the upbringing of the child, and
(c)is the biological father of the child or is married to or the partner ofthe
childs mother
Thusit is clear from the regulations that a biological father who intends to takeresponsibility for a childs upbringing doesnot need to be in an enduring family relationship with the mother. GMBbelieves that the approach taken in the regulations is the right one because itis important for biological fathers in this situation to be entitled topaternity leave to bond with their new child. The model document should beamended accordingly.
Draft model documents: letter for employers toacknowledge notification of maternity leave
Itwould be helpful for the letter to include a sentence confirming that OMLstarts with the date of childbirth if the baby comes earlier than expected.This would reassure many women for whom this is a major worry. The lettershould make clear that the mother can inform the employer of the birth as soonas she is able.
Itwould also be helpful if the letter contained a prompt for employers to insertdetails of occupational maternity pay and leave schemes which operate in theirworkplace. (The same point applies to the model letter dealing withnotification of adoption leave). There should also be a reference to respectiverights and responsibilities with regard to health and safety protection forpregnant workers.
Paternityleave notification requirements
GMBconsiders the requirement that those wishing to take paternity leave must givenotice in or before the 15th week before the EWC to be onerous. The regulationswould require 14 weeks notice for a leave period lasting only two weeks.
Weunderstand the Governments wish to seek alignment with the maternity leaveregulations, but there are health and safety considerations which make itdesirable for a woman to have notified her employer of her pregnancy by thenwhich do not apply to paternity. (Inany case see our comments below about notification requirements in relation tomaternity leave).
Thelevel of awareness of the passage of weeks during a pregnancy is much higheramong mothers than it is among fathers (or their equivalents). This makes itmore likely that fathers will fail to give the correct notification. It may bethat some mothers will use the occasion of notifying their own employer oftheir pregnancy to prompt their partners to give notice for paternity leave.But we do not believe the system should rely on this. It places an extraresponsibility on pregnant women who must already carry the burden of planningfor their maternity period, managing antenatal appointments etc. In addition itdoes not address the needs of biological fathers who are not in an enduringrelationship with the mother but do wish to take parental responsibility forthe child.
The2001 IRS survey notes that Most of our respondents do not have a formal noticeperiod for paternity leave, and simply require employees either to providewritten notice or to arrange leave through established leave applicationprocedures. Around 12% of employers in the survey did require
specificnotice but this tended to be of the order of two to four weeks
Webelieve that is important that the Government has regard to existing practicein establishing the statutory scheme rather than introducing requirements whichare so far out of line as to cause confusion, and make take-up more difficultfor those who will rely on the statutory scheme.
Wenote that under the Working Time Regulations workers are required to givenotice twice as long as the period of leave they wish to take. We suggest thatfollowing this approach there should be a requirement for notification no laterthan 28 days before the EWC unless it is not reasonably practicable to do so,in which case as soon as is reasonably practicable.
Notificationof start date for maternity leave
Thedraft regulations introduce a new requirement for notification in the 15thweek before the EWC of pregnancy and intended start date for leave. Previouslythe notification requirement was only 21 days. GMB is concerned about theeffects of this, particularly on the most vulnerable women in the labourmarket.
Bysetting the notice requirement so early, the regulations mean that largenumbers of women will have to change their intended start date as the pregnancyprogresses. It is very difficult to predict in the 26th week ofpregnancy how a woman will feel towards the end of that pregnancy, andcircumstances can change for example some women may feel more tired thanpreviously, or need extra time before the baby comes for preparations at home.Others may feel fitter and better able to continue than they anticipated and wishto carry on longer in order to preserve leave for after the baby is born.
Weare concerned that some employers make seek to pressurise women, especially thevulnerable, into sticking to the date they originally notified. We are alsoconcerned about women who have given notice to change the date that they gavein the 15th week before the EWC (as we predict many women willroutinely do) but whose circumstances subsequently change a short time beforetheir new start date. They will be forced to ask for a second change of date,for which they may be unable to give the 28 days notice. But their ability toget a sympathetic hearing for what may be genuine difficulties arising at shortnotice, will be reduced. Employers in this situation may be unwilling to discussthe issue simply on the grounds that they have already made one change, andthey may take a harder line on the interpretation of where reasonablypracticable provisions.
Wesupport the principle that it is in everyones interests for employees and theiremployers to be entering into a dialogue about arrangements by the 15thweek before the EWC. We believe that it would be sensible to simplify the draftregulations so that a woman is required by that date (or as soon as isreasonably practicable) to notify her employer of her pregnancy and her EWC.This gives employers more opportunity to plan and prepare than they had underthe previous system.
Thenext stage should be for the employer to furnish the woman we suggest within7 days with information as to what her entitlements are. This will allow herto make an informed decision about whenshe wishes to start her leave. She should then be required to notify heremployer of her start date at least 28 days in advance, where reasonablypracticable, or as soon as is reasonably practicable.
Therewill still be cases where a woman seeks to change her start date and is notable to give 28 days notice. But at least this will only be the first changethe employer is asked to deal with. GMB believes employers should treat suchrequests sympathetically where they are due to changed circumstances. and thiscould be dealt with in guidance. Many such cases will be caught by thereasonably practicable provisions.
Sickness trigger maternity leave
Wewelcome the reduction of the sickness trigger period from 6 to 4 weeks,although we remain opposed to it in principle. We would urge the Government toretain in guidance current advice which states that the odd days of absence maybe disregarded, as this is an important let-out both for employers andemployees who do not wish to see their plans disrupted.
Protection fromdismissal and other detriment
Regulation 25 of thePaternity and Adoption Leave Regulations makes it automatically unfair todismiss an employee who took or sought to take paternity or adoptionleave. But we are concerned that thisis drafted too narrowly. It would not protect an employee dismissed becausetheir employer knew their wife/partner was pregnant or they were planning toadopt, and that in due course they might want to take leave.
Thesame draft regulation contains a small employer (five or fewer employees)exemption where the employee took additional adoption leave.