Audrey Williams, Head of Discrimination Law at international law firm Eversheds said
“The proposals for shared parental leave represents a bold step and it is clear that the Government sees this consultation as the beginning of a cultural change which will move away from the current highly gender-based and inflexible approach to parenting. Nonetheless, employers who are struggling to get to grips with the recently introduced rights to additional paternity leave are unlikely to be looking forward to yet another change in this complicated area of employment law and practice and also explains the delayed introduction until 2015.
“Extending the right to request flexible working to all employees divides employers, with some strongly supportive and others concerned that the extension is a step too far. Concerned employers worry about how to deal with multiple and competing requests when not all can be accommodated. Today’s consultation addresses this situation with a proposal that would allow employers to prioritise some requests, for example, requests from parents. Many employers may decide that this is simply too risky to apply in practice, given the risk of discrimination claims. On the other hand, the proposed dismantling of the bureaucratic step-by-step procedure, which currently applies to employees making requests for flexible working, will be welcomed by all employers.
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“The consultation’s proposal to put an employer at risk of having to conduct an equal pay audit if an Employment Tribunal upholds a claim against it for gender discrimination in pay arrangements is unsurprising given that both the coalition parties gave manifesto commitments to make pay audits compulsory in some cases. The proposals set out in the consultation paper reflects the Conservative party’s favoured option, being relatively light touch compared with the Liberal Democrats’ manifesto suggestion of mandatory fair pay audits for every company with over 100 employees.
“Finally, the Government was compelled to act over annual leave provisions as a result of European Union case law. Even though EU law says workers should be allowed to carry forward leave in some cases, it is not yet clear that UK law requires, or even allows, this. This has led to Tribunals ‘reinterpreting’ our law to give effect to European law leaving the position unclear . Given this unsatisfactory situation, all employers want greater clarity and the consultation is a step forward in that direction. However, this area of law is complex and new EU cases continue to move the goal posts by deciding new points of interpretation. One such case is currently under consideration by the Court of Justice of the European Union and, as a result, employers need to be aware that this consultation does not reflect the last word on this subject.”
