Some of the most interesting developments in employment law this year could be those that protect the UK’s 13 million working mums and dads, as well as expectant and potential parents.
Societal norms regarding working parents have dramatically evolved but, according to 2019 global UNICEF report Are the world’s richest countries family friendly?, the UK’s childcare and parental leave approach leaves a lot to be desired. Ranked 28 out of 31 (just ahead of Cyprus, Greece and Switzerland), the UK is considered one of the least family-friendly countries in the OECD.
In one of the biggest shake ups in employment law yet, the government hopes its Good Work Plan – the result of 2017’s Taylor Review of Modern Working Practices – will push the UK up the league table. Goals include increased family flexibility, more parental involvement in childcare, support for mothers returning to work, less discrimination and closure of the gender pay gap – all while minimising any burden for businesses.
Where we are now
In March the UK welcomed two new parent-focused laws. The first saw the existing neonatal care policy for premature babies extended to include all newborns who need specialist care for two weeks or more.
The second, Jack’s Law, ruled that any parents who lose a child aged under 18 (a bereavement type for which there was previously no statutory right to leave) are entitled to two weeks’ paid absence. This is a day one right.
Unlikely to significantly affect any one business, Jack’s Law is highly employee focused. As such, HR engagement is vital.
“Employers should be led by the employee,” advises Rosie Gloster, a senior research fellow at the Institute for Employment Studies (IES). “Grief is a personal issue and employees will respond to and be affected by it differently. Some may wish to return to work sooner, others may find it more difficult.”
As important as setting out the legal basis is, the most effective staff support will come from managers trained to have conversations with grieving employees, says Gloster.
For Katherine Easter, chief people officer at the Pension Protection Fund (PPF), this has been a sad reality: “Our corporate culture enables us to work with individuals to understand what they need from us. This may be time away from the office, a reduction in hours so work can be used as a source of comfort or distraction, or just recognising that the individual may not feel able to fulfil all their duties for a period of time.”
Evidently Jack’s Law is a considerable improvement on the previous situation – but is it enough?
“Most people would agree that 14 days isn’t enough time for a parent to adjust to the ‘new normal’ after the death of their child,” says Emma Day-Duro, a senior qualitative researcher on this topic at Ashridge Executive Education, part of Hult International
“It’s crucial that managers don’t see this two-week entitlement as some kind of indication that parental bereavement is managed and controlled in this time. What it can do, however, is allow for a conversation after two weeks.
“Often an employer’s immediate response is ‘take all the time you need.’ While this is a nice sentiment, in reality it isn’t often possible. By marking the two-week point the pressure is off, and a contact point has been established to discuss how best to move forward.”
Day-Duro believes the new law will hand some degree of control to the parents, allowing them to take time when they need
it – and split the weeks to take them separately if required.
She continues: “What our research is finding is that child bereavement is incredibly complex, and grief doesn’t come all at once and then disappear or dissipate. Some parents may appear to cope well initially and feel the need to throw themselves back into work, only to struggle later down the line.”
However, the next stumbling block is the fact that a parent who loses a 19-year-old child is not covered by Jack’s Law.
“Even if this is not recognised by law, it is crucial that managers and colleagues appreciate that there isn’t a cutoff age where the death of a child would be less traumatic,” urges Day-Duro.
“It would be fantastic moving forward if this law could apply to all kinds of close bereavement.”
Further family-friendly reforms are in the pipeline; flexible working for all and an extension of redundancy protection for pregnant women and those just back from maternity, adoption or Shared Parental Leave.
Law-binding policies aside, some HR departments are leaps and bounds ahead with positive parental initiatives.
Pay and leave
The introduction of Shared Parental Leave (SPL) in 2015 was considered ground-breaking, but enthusiasm for the scheme quickly dried up with as little as 1% of people taking advantage of it. Low take-up is said to be partly due to the complexity of the system, but it’s more likely the barrier is financial.
“Statutory maternity pay is more generous than statutory pay for Shared Parental Leave, and while many employers enhance maternity pay it is much less common for Shared Parental Pay to be similarly enhanced,” explains Grace Malone, a senior associate
in the employment team at Burges Salmon.
As such it often makes financial sense for the birth mother to stay on maternity leave and the second parent to work.
Until such a time as all family leave types are paid equally, some organisations have taken matters into their own hands. Since SPL was introduced the PPF has offered fathers the same rights as mothers and fostered a culture where they feel supported to use the benefit. As a result, 50% of fathers at the PPF took advantage of their enhanced entitlements in the past year.
Likewise, Lloyds Banking Group has boosted its family leave. Up to 20 weeks at full pay is available for partners who have been allocated remaining maternity or adoption pay. This has resulted in a 20% surge in SPL take-up at Lloyds.
The right to request flexible working, which was introduced in 2003 for the parents of children aged under six and certain other carers, has since been extended to any person working for the same employer for at least 26 weeks.
Gloster comments that: “Flexible working has the key benefits of increasing wellbeing and work/life balance, reducing the gender pay gap, enabling both parents to share childcare and retaining staff during transitions in life.
“But giving flexibility of hours to one person might affect the workload of others. So it is important to consider the effects on teams and ways of working. Line managers need to be trained and have the skills and confidence to manage people working flexibly.”
There is a strong demand for this to be the default option for all employees – except where employers have a ‘good reason’ to the contrary. Presently, default flexible working is still subject to government consultation and comes with a wealth of implementation-related challenges.
As early examples, the PPF has seen 80% of its team either working from home or enjoying altered start or finish times. Ninety-one per cent of those at Lloyds Banking Group – where 53% have parental or caring responsibilities – say they have the flexibility to meet their needs while fulfilling work commitments.
“While medical treatment is progressing all the time, employment law is not keeping pace in the same way,” suggests Malone.
“Currently there is no express right to leave, paid or otherwise, for an employee who is undertaking or whose partner is undertaking fertility treatment – unless the statutory sick pay regime applies.”
Many employers take a pragmatic and compassionate approach in these circumstances – Goldman Sachs, for example, will fund $10,000 of IVF treatment – but this relies on employees being up-front about their medical status, which they may not want to be. In addition, it is a long process that can give rise to complications. So what do the legal experts recommend?
“A good place to start is to reference your approach to fertility treatment in your family leave policy so employees have an outline of the support they can expect,” advises Malone.
“Being transparent about your approach should also encourage employees to have an open dialogue with their manager or HR if they are starting an IVF process. But bear in mind that no two circumstances will be the same, so it is important that any policies allow for flexibility.”
Sodexo Engage marketing director Jamie Mackenzie is passionate about fertility leave: “Those who struggle to conceive can feel isolated in the workplace, while expectant and working parents benefit from various allowances.”
He continues: “Law firm Allen & Overy is getting it right. It offers five days of paid leave a year for fertility treatment, allowing those undergoing treatments like IVF the time needed to attend appointments and cope with the emotional stress before returning to work.”
The bottom line
“The idea of what constitutes family life is changing,” confirms Mackenzie. “Employers must keep pace or risk alienating new talent and existing staff looking for the most inclusive policies.”
Easter recommends instilling a highly supportive culture: “We encourage our line managers, supported by the HR team, to exercise discretion. To support them to make decisions that are in the best interests of our people, our line managers are expected to manage their direct report in terms of tasks but also relate to them as individuals.
“But I’m not sure it’s just about parents,” she continues.
“People have increasingly complicated responsibilities, including looking after the ageing population, and workplaces need to be flexible about when and how the work is done. I think this calls for the ability to treat people as individuals whose specific circumstances are understood, which will in turn encourage them to be more understanding of what the organisation is trying to achieve and their part in it.”
The full piece of the above appears in the April 2020 print issue of HR magazine. Subscribe today to have all our latest articles delivered right to your desk.