Summary
- Citizens Advice warmly welcomes the improvements to maternity (and adoption) leave and pay set out in the Bill. There can be no doubt that substantial numbers of working parents – and, just as importantly, their children – will benefit from these provisions.
- We strongly support the Government’s aim of enabling working fathers to take more time off to be with and care for their children, but do not believe that the Bill’s new right to Additional Paternity Leave is the best means of achieving this aim. We believe that enhancing the existing right to Ordinary Paternity Leave would better achieve this aim.
- As well as being much better paid and of longer duration, Ordinary Paternity Leave needs to be more flexible, with a much reduced notice period. The current inflexibility and grossly disproportionate notice period are undoubtedly factors in the disappointingly low take-up since 2003.
- The Government should be bolder in extending the right to request flexible working. We can see no good reason why the right should not be extended to all workers, but at the very least it should now be extended to all carers (including those caring for disabled or elderly friends, neighbours and more distant relatives), and to parents of older children.
- The Government’s strategy for enhancing parental and other rights at work must include steps to ensure more universal compliance by small employers, and more effective enforcement against rogue employers.
Statutory Maternity Leave and Pay (Clause 1 and Schedule 1)
Clause 1 extends the period for which payment of Statutory Maternity Pay and Maternity Allowance can be made, to a maximum of 52 weeks. The Government has stated that it will use subsequent Regulations to prescribe a period of 39 weeks (i.e. nine months) for women expecting babies on or after 1 April 2007, as a step towards its goal of one year’s paid maternity leave.
We warmly welcome and support Clause 1 (as well as Clause 2, which makes identical provision in respect of Statutory Adoption Pay).
We also welcome the provisions of Schedule 1 amending the rules of statutory leave and pay so as to enable Statutory Maternity Pay, Maternity Allowance and Statutory Adoption Pay to begin on any day of the week, and be capable of being paid on a daily basis (rather than weekly basis, as now).
Additional paternity leave and pay (Clauses 3 – 10)
Clauses 3 – 10 of the Bill provide broad powers to establish a right for fathers to take, as paid Additional Paternity Leave, up to three months (six months once Statutory Maternity Pay has been extended to 12 months) of any Statutory Maternity Leave not taken by the mother before her return to work, subject to various eligibility and other conditions being met.
In practical terms, this right is indistinguishable from the right, proposed in the DTI’s February 2005 consultation paper, for mothers to transfer some of their unused Statutory Maternity Leave and Pay to the father.
We strongly support the Government’s stated aim of making it easier for working fathers to take time off to be with and care for their children. But in our view the Bill’s new right to Additional Paternity Leave (APL) is not the best way to achieve this aim, for several reasons:
- At least four out of ten new fathers would not benefit at all, as the mother is not in work at the time of the birth (and so has no Statutory Maternity Leave that could be ‘claimed’ by the father as APL).
- None of the proposed APL could be taken in the first few (5-6) months after the baby’s birth – a crucial period during which many new fathers want (or need) to spend more time at home with their family (i.e. more than the two weeks of Ordinary Paternity Leave).
- Working parents would not be able to take time off together. This would severely constrain parental choice – which the Government has said it wants to maximise. More significantly, it would prevent working parents taking an extended period of time off work together in order to care for a baby unexpectedly born with a disability, or to cope with the onset and consequences of one of the various serious illnesses (such as meningitis) that are most common in young babies, or where the mother is suffering from severe post-natal depression and so is unable to cope at home alone.
- The necessary process for the taking of APL – that would (except where both parents work for the same employer) involve liaison between at least two employers – would be relatively complex and burdensome, and would simply present too great a compliance challenge to many small employers.
All in all, we are simply not convinced that the Bill’s new right to Additional Paternity Leave would meet the needs and desires of working parents, and we are extremely doubtful that many working fathers would make use of the right. We note that the Government itself has predicted a negligible take-up rate of just one per cent.
We believe the Government’s aim would be better achieved by enhancing the existing legal right to Ordinary Paternity Leave (as it is now to be known). The current entitlement of two weeks paid leave should be increased to at least four weeks, it should be more flexible, and – along with Statutory Maternity and Adoption Leave – it should be better paid. That way, working fathers could choose to be at home at the time that is best for them and their family.
Ordinary Paternity Leave and Pay – flexibility and notice period
As well as being better paid and of longer duration, Ordinary Paternity Leave also needs to be much more flexible than it is at present. Currently, the Regulations require men to give their employers the same amount of notice that expectant mothers must give to their employer in order to take Statutory Maternity Leave (i.e. by the fifteenth week before the expected week of childbirth); the leave must be taken within eight weeks of the birth (or be forfeited); and the leave must be taken in one single block (of one week or two, with the second week being forfeited if only one week is taken).
Amongst low-paid, non-unionised workers, awareness of the right to two weeks’ paid paternity leave is poor, and many first-time fathers in particular do not realise that they have to give 15 weeks notice until shortly before or even after the birth of their child – when of course it is already too late.[1] And too many small employers are taking advantage of a worker’s failure to give the full 15 weeks’ notice to deny paternity leave. Our recent social policy report, Hard labour, shows that many new fathers – and their families – are losing out as a result, and calls for the notice period to be reduced.
Clearly, there needs to be a reasonable notice period, to allow employers to make the necessary arrangements for cover, but the current notice period is grossly disproportionate. In Hard labour, we suggest that the notice period could be brought into line with that for paid holiday, with two weeks’ notice for each week of paternity leave being taken.
Noting the Government’s declared intention to “provide more support and more choice in the first year of a child’s life”, we urge the Government to use the opportunity provided by the Bill (and the Regulations that will follow) to:
- Reduce the notice period for taking Ordinary Paternity Leave.
- Lengthen the period following the birth during which Ordinary Paternity Leave can be taken, from the current eight weeks to 12 months.
- Allow for Ordinary Paternity Leave to be taken in separate blocks of one week.
Time off for fathers to attend ante-natal appointments
We are disappointed that the Government has (so far) not used the Bill to extend to would-be fathers the existing right of working expectant mothers to paid time-off from work to attend ante-natal appointments. As long ago as January 2003 the Government stated that it was considering “whether to allow fathers time off to attend ante-natal care”.[2]
All the available evidence suggests that allowing fathers paid time off to attend ante-natal care not only allows them to support their partners during pregnancy by sharing concerns and anxieties, but increases the likelihood of them taking an active role in the care of their children in the long-term. The Government itself has acknowledged that “families benefit from a father being involved in caring for his child from the earliest time” and that this “can begin with his attendance at ante-natal appointments”.[3] Indeed a DTI ‘good practice’ guide encourages employers to allow “fathers-to-be the flexibility to attend ante-natal appointments” as this “can lead to fathers taking a more active role after the baby is born”.[4]
Accordingly, we urge the Government to use the opportunity provided by the Bill (and the Regulations that will follow) to:
- Extend to would-be fathers a right to paid time-off to attend ante-natal appointments (subject to evidence of the appointment being provided to the employer).
Flexible working (Clause 12)
Clause 12 of the Bill provides powers to widen the scope of the right to request flexible working, introduced in April 2003. Currently, the right is available only to employees with dependent children under the age of six (and dependent disabled children under the age of 18). Whilst Clause 12(2) allows for Regulations extending the right to both carers of adults and parents of older children, the Government has made clear that it will extend the right to carers from 1 April 2007 but leave the extension to parents of older children to some unspecified date in the future.
We warmly welcome the extension of the right to carers, but are disappointed by the Government’s excessive caution in relation both to the definition of a ‘carer’, and to extending the right to parents of older children. Both the Government and employers’ bodies have proclaimed the right to request flexible working a success, and it is clear that the need for ‘family-friendly’ working hours does not end when a child reaches the age of six. As the then Secretary of State for Trade and Industry, Patricia Hewitt MP, noted in September 2004, extending the right to both carers of adults and parents of older children would not only “dramatically increase the number of people benefiting”, but would “encourage far more employers to look at how reorganising working time could benefit their business as well as their employees”.[5] Indeed, we see no good reason why the right to request flexible working should not be extended to all workers.
We are therefore greatly disappointed by the narrow definition of ‘carer’ set out in draft Regulations published for consultation last month. This proposed narrow definition would exclude those caring for disabled or elderly friends, neighbours or more distant relatives. We recognise that the definition needs to be, in the Government’s words, “clear, straightforward and easy to understand for both employers and employees”. We suggest that the best way to meet this requirement might be to allow carers to define themselves, subject to adequate evidence from e.g. GPs and social workers.
Compliance and enforcement
As should be clear from the above, Citizens Advice strongly supports the Government’s intention behind the various measures set out in the Bill: to “ensure that every child gets the best start in life and to give families more choice about how to balance their work and caring responsibilities.” However, it is clear to us that, for many low-income families, the daily juggling of their caring and working commitments is less a case of enjoying a good ‘work-life balance’, than of enduring a work-life compromise. This is not least because a great many low-paid workers are simply not receiving their basic legal rights, including those rights that the Government now quite rightly seeks to enhance through the Bill.
Mostly non-unionised and so particularly vulnerable both to exploitation by rogue employers and to inadvertent non-compliance by inadequately informed employers, these workers are performing relatively unglamorous but essential work in care homes, schools, hospitals, shops, restaurants, pubs and other components of the so-called 24/7 service industry. Many are working part-time and/or at night and weekends in order to meet family or other caring commitments. They are, in the words of the Prime Minister, “the millions of hard working, low paid families who do the jobs that we all rely on.”[6]
In a series of reports – including Hard labour, already mentioned above, and Still wish you were here: continuing non-compliance with the paid holiday provisions of the Working Time Regulations 1998 (December 2004) – we have described how, every year, tens of thousands of such workers are denied their basic legal rights at work. And we have described how the legal protection supposedly offered to such workers by the Employment Tribunal system is rendered meaningless by the inaccessibility of that system and the workers’ fear of victimisation or dismissal even just for raising the matter with their employer (as they are now required to do by law before they can make an Employment Tribunal claim).
Sally was four months pregnant when she approached her local CAB. Her employer of three years – a newsagent – had summarily dismissed her the day after she had notified him of her pregnancy.
Andy sought advice from his local CAB after being told by his employer of two years that if he wanted to take time off work following the birth of his child, he would have to use some of his paid holiday entitlement.
We believe that the Government’s strategy in relation to maternity, paternity and other statutory workplace rights must include steps to ensure more universal compliance by small employers, including more pro-active enforcement against rogue employers. Otherwise, many of the most needy and vulnerable workers in the UK economy may simply not benefit at all from the measures now set out in the Bill.
Social Policy contact: Richard Dunstan richard.dunstan@citizensadvice.org.uk
Parliamentary contact: James Hulme james.hulme@citizensadvice.org.uk
[1] Recent research by the EOC found that over a third (37 per cent) of all fathers surveyed “did not have enough information” about paternity leave before the birth of their child. As the sample group for this research included those in managerial and professional occupations, the proportion of low paid workers who do not have enough information about paternity leave is undoubtedly higher still. Dads and their babies: leave arrangements in the first year, EOC, Spring 2005.
[2] Balancing work and family life: enhancing choice and support for parents, HM Treasury/DTI, January 2003.
[3] Letter, dated 30 November 2005, to Citizens Advice from Gerry Sutcliffe MP, DTI Minister.
[4] Fathers-to-be and antenatal appointments: a good practice guide, DTI, November 2004.
[5] In: Unfinished business: the new agenda for the new workplace, IPPR, 2004.
[6] Speech to Labour Party conference, 28 September 2004.
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