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Part three: Shared parental leave – the right to refuse leave

The new incoming right to shared parental leave, and the flexibility this affords new parents, is a fairly major sea change. It is also a cause of concern to millions of employers, who perceive it as difficult to manage without adversely affecting the effective running of their businesses. There is a further fear that it will require vast amounts of management time to implement correctly.

family friendlyHowever, the new regime is not as daunting as it initially appears, and our series of blogs will address the main topics of concern – how to administer the scheme, how to manage leave, the ability of employers to refuse leave, and how to deal with pay and benefits.

Refusal

In our third blog we look at the right of refusal.

The flexibility to take SPL in discontinuous periods throughout the first year of the child’s life (or placement, for adopters) is the most radical aspect of the new regime and the one that parents will most appreciate. The corollary of this is that employers are naturally wary about having to accommodate multiple periods of leave for new mothers and new fathers whereas previously they realistically only had to arrange cover for women on maternity leave. Maternity leave is largely predictable and for most women is a fairly significant period of time. This makes it fairly simple to manage replacement workers, as employers can specifically recruit for ‘maternity cover’ positions.

Under the new regime, presuming they are eligible, parents can request time off in up to three separate blocks, which can be either continuous (as in example A) or discontinuous (as in example B).

Discontinuous Leave

The Government has clearly recognised that there will be businesses for which requests for discontinuous leave may be unworkable in practice – many small employers will not have sufficient staff to cover, for example “every other week for a twelve week period”, but could either make do without a worker for the full twelve weeks or find temporary cover.

Accordingly, whilst parents do have the right to request discontinuous periods of SPL, the good news for employers is simple – not only can they be refused, but they don’t even have to give reasons for doing so.

We would always advise dealing with requests for discontinuous leave fairly and consistently and would rarely consider it prudent to withhold the reason for declining leave from the employee in question. This would lead to speculation, which is dangerous for potentially litigious employees and likely to result in a far more sinister conclusion than the true reason for the refusal. It is also important to avoid the risk of any perceived, or actual, disparity in treatment between colleagues, which could lead to a potential constructive dismissal and/or discrimination claim.

In practice, the reasons for refusing will be relatively straightforward – continuity of service to clients, for example, or the difficulty and/or cost to small employers in managing appropriate levels of staffing for unrealistic periods of time.

Being upfront with employees may help avoid combative and/or difficult discussions about whether or not such requests will be accepted – for example, having a policy that clearly sets out any circumstances that would be usually refused without discussion (for example, asking to work one week on, one week off in a customer-facing industry). A well-drafted policy will always help all parties, provided that it is adhered to in practice.

When refusing a request for discontinuous leave, the employer doesn’t  have to propose alternative dates or negotiate with the employee in any way. However, the employee does have the right to either take the entire period in question as continuous leave or withdraw the notice requesting it. If they withdraw it, the notice does not count towards their maximum of three leave notices, and as such they are at liberty to simply submit a new request. It is therefore sensible to discuss alternatives, if any exist, with a view to reaching a mutually agreeable solution, rather than deal with a potentially limitless series of similar but slightly amended requests.

Continuous Leave

An employer cannot refuse a period of continuous leave, and parents remain entitled to take their leave split into three blocks.  This may cause some difficulties for businesses if, for example, parents want to be absent for intermediate periods of time – while most business can cope without a staff member for 1 or 2 weeks, and would recruit temporary cover for an employee who would be absent for 12 weeks, the middle ground of a 5 or 6 week absence may prove difficult to manage and difficult to recruit for.

Unfortunately, there is little that can be done in this case and it is worth businesses considering all their options carefully in advance and formulating a SPL plan, rather than find themselves with only 8 weeks in which to find a business fix.

One option that is available, but must be exercised carefully, is asking the employee if they would consider changing their planned leave to something that suits the business more.  This is permissible, but comes with a clear level of risk.  As the new regime is associated with rights not to be subjected to a detriment, or dismissal, as a result of seeking to take SPL, any such conversation must be carefully considered and not treated lightly.  Care must be taken to ensure that the employee does not feel pressurised to change their plans, or think that their request has been refused.  A relaxed and friendly conversation, however, about whether the employee is flexible would not be inappropriate.

Our shared parental leave hub is your resource for all shared parental leave issues and contains all our latest blogs.

Keep up to date and follow us: @dwf_employment

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further