The Government has announced its proposals in respect of at least part of its Modern Workplaces consultation. Firstly, all employees will, from some point in 2014, have the right to request flexible working (and not just those employees who are parents of children under 17 or 18 if disabled).The current statutory procedure under which requests must be made and considered will be replaced with a requirement that requests are dealt with in a “reasonable” timeframe and in a “reasonable” manner. Sound familiar? The current 26 weeks’ service requirement will be maintained, as will the rule that only one such request can be made in any 12 month period.
Secondly, the Government has signalled its intention to allow mothers to cut short maternity leave and pay (other than the two week compulsory leave period), and share the remainder with their partner as flexible parental leave (subject to certain qualifying criteria). The length of flexible parental leave will not exceed the balance of untaken maternity leave, and the amount of statutory flexible parental pay will not exceed the balance of untaken statutory maternity pay or maternity allowance available at the point at which the woman returns or commits to return to work. Each parent will qualify in their own right for leave and pay. Flexible parental leave will have to be taken in minimum one week blocks. The proposal is to introduce flexible parental leave and statutory flexible parental pay in 2015, although there is to be further consultation around the notification periods required to be given by employees.
In addition, the Government’s response proposes that intended parents of a child born through a surrogacy arrangement who meet the criteria to apply for a Parental Order will be eligible for statutory adoption leave and pay if they meet the qualifying criteria, and for flexible parental leave and pay if they also meet the qualifying criteria. This will be the first time that surrogate parents’ entitlements will be expressly catered for in domestic legislation.
Separately, the European Court of Human Rights (“the ECHR”) has recently ruled that the UK’s failure to provide adequate legislative protection for a bus driver dismissed when he became a BNP councillor was a breach of Article 11 of the Convention (freedom of association). Mr Redfearn was employed by Serco as a bus driver in an area with a high concentration of persons of Asian origin. On his election as a BNP councillor, they dismissed him, fearing that anxiety would be caused to Serco’s passengers and also that Serco’s reputation would be damaged. He did not have sufficient service to claim unfair dismissal, and ultimately his claim for race discrimination was dismissed by the Court of Appeal, who held that his dismissal was not on racial grounds but because of his political affiliations. Mr Redfearn took his case to the ECHR, arguing that his membership of the BNP was protected by Article 11, and that in order for the UK to have due regard for his Article 11 rights, the UK ought to disapply the one year qualifying service rule for unfair dismissal.
The ECHR accepted that membership of a political party should be protected by the Convention, even if the views espoused by that party were offensive or shocking. The UK’s one year rule meant that Mr Redfearn had no legal protection of his Article 11 right, and as such the UK was in breach of its Convention obligations.
It is widely believed that the UK will now have to widen the definition of “religion or belief” in the Equality Act to include political beliefs, even though that flies in the face of existing case law and the expressed intention of the Act. However, this does not automatically mean that those employees who hold political views like those of Mr Redfearn cannot be dismissed. The ECHR’s ruling simply means that people like Mr Redfearn ought to have a possible legal remedy should they consider their legal rights have been breached.
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