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'Modern Workplaces' Consultation launched

clip_imagedavid_in_macduff002The Department for Business Innovation and Skills (BIS) has published its long-awaited consultation paper on introducing a new system of shared parental leave and extending the right to request flexible working.  The 'Consultation on Modern Workplaces' also covers equal pay audits and proposed changes to the working time rules.  Employment lawyer David Christie, partner with Proactive Employment Lawyers, outlines the proposals.

The Government's consultation is wider-ranging than expected.  The consultation itself closes on 8th August 2011, with implementation taking place in stages between 2012 and 2015.  The first proposals that are likely to take effect are the proposals in relation to working time; with the proposals on shared parental leave likely to take the longest.  Of main interest are the following:

  • the proposed system of flexible or shared parental leave;
  • proposals to extend unpaid parental leave;
  • proposals to extend the right to request flexible working to all employees employed for 26 consecutive weeks;
  • proposed changes to the Working Time Regulations 1998 to take account of case law from the European Court of Justice;
  • proposals for compulsory equal pay audits for employers found by a tribunal to have discriminated because of sex with regard to pay.

Parental Leave

The Government takes the view that the current system of parental leave patronises women and marginalises men.  The proposed new system of parental leave aims to give families more choice about how leave is shared. 

Under the new proposed system of shared parental leave, the initial period of leave will still be reserved to the mother.  However, the remaining leave will be sharded as the parents see fit.  Either way, most of it will be paid.  The Government proposes that:

  • 18 weeks' maternity leave will be available to be taken in a continuous block around the time of birth. 
  • The remainder of existing maternity leave would be re-classified as 'parental leave' - each parent would have four weeks' paid leave exclusive to them, with the remaining weeks available for either parent on an equal basis.  Similar provisions will apply for adopting and same-sex couples.
  • The existing right to unpaid parental leave beyond the first year of a child's life will be incorporated into the new scheme

The Governement is seeking views on allowing employers and employees to agree for parental leave to be taken in chunks; or on a part-time basis.  It has also indicated that employers will have to right to refuse such requests on business grounds.

The consultation paper also askes whether fathers should be given the right to (unpaid) time off work to attend ante-natal appointments.

The proposed changes to parental leave will not be in place before 2015.

Flexible Working

The Government proposes that the the right to request flexible working should be extended to all employees employed for 26 consecutive weeks. 

This means that the right to flexible working would be enjoyed by all employees, not just those with childern under 17 (or 18 for parents of disabled children). 

This extension would replace the existing statutory process for considering requests with a duty to consider requests 'reasonably'. 

A new code of practice on this would be issued.

From Vince Cable's foreword to the consultation, it appears that the Government is wary of doing anything that might be interpreted as adding to the legislative burden on employers.  This seems to lie behind the idea of replacing the current statutory 'duty to consider' process with a (presumably non-binding) code of practice.

Working Time

Case law from the European Court of Justice (ECJ) has established that workers who are unable to take their annual leave due to sickness absence or maternity or parental leave in the current leave year must be able to carry forward that leave to the following leave year.  The Government proposes amendment to the Working Time Regulations 1998 to reflect this.  Specifically, the Government proposes limiting the period of carry-over to the 4 weeks required under the parent European Directive (the EU Working Time Directive), and excluding the additional 1.6 weeks given by the UK's implenting regulations (the Working Time Regulations) and any additional contractual leave.

The Governement is also considering proposals which would allows employers to 'buy out' the extra 1.6 weeks.

Views are also sought on increasing the flexibility for employers around the operation of statutory annual leave. 

Equal Pay

The Government is considering the imposition of mandatory equal pay audits for those employers found to have discriminated against claimants because of sex with regard to pay.  There will be exceptions if such an audit would not be productive. 

The consultation seeks views on the appropriate sanction for failure to comply with an equal pay audit.


The Government aims to legislate on the new system of shared parental leave, flexible working and equal pay during this Parliament, although the parental leave reforms will not come into force until 2015.

The Working Time Regulations 1998 are a statutory instrument (as opposed to an Act of Parliament).  The Government is proposing the introduction of secondary legislation to amend the Regulations, with implementation likely to be in 2012.


1. Some of these issues will be discussed at our next lunch bite, 'What's New in Employment Law 2011?', which is due to take place on Tuesday 14th June 2011.

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