Family Rights & Policies In 2019
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During 2018 family right and Company policies were widely discussed and there’s nothing to say that this won’t continue into 2019.
Paternity Pay Claims
Currently, there are various types of pay in the workplace for family leave, for example, maternity or paternity pay are the most well-known.
However, shared paternity leave (SPL) was introduced in 2015 and has been criticised by some for being complicated and lead to misunderstandings. Which may explain why it had an initially slow take up rate.
In the cases of Capita, Customer Management v Ali and also Hextall v Chief Constable of Leicestershire Police action was taken against the employer for men being discriminated against regarding their SPL pay.
Capita Customer Management v Ali
An employee (Ali) brought a claim against his employer as he was told that he would not receive the same rate of pay equivalent on SPL as a woman who was on statutory maternity leave (SML). The Employment Appeal Tribunal (EAT) stated that SPL and SML were distinctly different. Each had a different purpose as SML was to ensure safeguarding the health and wellbeing of the mother, while SPL is to provide care for the child. Therefore there was no discrimination present.
Hextall v Chief Constable of Leicestershire Police
Hextall brought a claim for indirect discrimination when he received a lower rate of pay on SPL than a woman would be entitled to receive during maternity leave. The EAT held that unlike the Ali case, you could not compare the two situations under direct discrimination and there was no case to answer in an indirect discrimination claim.
As there appears to be confusion around SPL, it is expected that discrimination claims may increase in 2019. As tribunal fees have been abolished, it is not unreasonable to expect that any policy that would treat a mother and father differently will be challenged.
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Modern Family Units
As the ‘traditional’ family set up has blurred. The tradition idea of who the caregiver is in the home has changed
Therefore the law and employers will need to reflect this. What constitutes a ‘family life’ is essential when it comes to the European Convention of Human Rights as it poses some questions surrounding what a person is legally entitled regarding family life. As not all situations fit into the legal categories.
In the case of X, Y and Z v UK, it was held that family life was present between a female who underwent gender reassignment surgery to become male and a child that had been conceived by his female partner through IVF.
However, in a case where a lesbian couple became parents to a child conceived through artificial insemination, it was held that a family life did not exist. This leads to questions about how IVF should be treated regarding family employment rights.
While legal confines exist, employers will need to be aware that some situations do not fit these and go beyond any interpretations to include families where the parents are employed at the Company.
Who Can Benefit From Family Policies
Company policies that related to family benefits and leave can be a major consideration when employees want to join a business.
Therefore many employers chose to have policies that go above the legal requirements as a way of attracting and eventually retaining staff.
Many larger Companies also include schemes for caregivers in their shared parental leave policy. For example, Virgin Management Limited announced that it would offer employees 52 weeks’ full pay regardless of whether they were male or female.
Currently, it is not a legal requirement for Companies to include Grandparents in their policies. However, it could prove to be an innovative way of attracting new employees to the Company.
In addition to the desire for pay transparency, the Government announced that there were plans to consult on whether large businesses should make their Company family policies public. The better the policy, the more interest it could be to potential new employees.
Many people find talking about money to be awkward, particularly when it comes to wages. However, there has been significantly more talk during 2018 surrounding pay gaps.
Figures have been produced that state women do not negotiate the salary. Often when they accept a position at a Company, they accept the salary whereas a male employee felt more comfortable getting into a discussion about increasing the amount of offer.
Also, when it came to yearly reviews, significantly more men would ask their employer for a pay increase.
It was found that women often take salary negotiations personally and are not as confident asking the same questions around money as men are. However, due to the exposure of the gender pay gap within some Companies
Companies are going to have to be more transparent about payroll, in particular, Executive pay and policies on family leave pay entitlements. As businesses will need to be more open about pay discrimination, it may become more common for discussions about money to happen in the workplace and for employees to approach the employer.
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Bereavement and Special Leave
New legislation will be brought in that will make it a statutory requirement for Companies to provide two weeks bereavement leave over 56 weeks without any loss of pay. This can then be taken in one single block or split into two weeks. This will be available to employees who have lost a child.
Sidiq Khan also stated that there were plans to give City Hall employees additional special leave rights if the child of an employee was born premature or ill.
Due to the change in legislation, Companies will need to look at the current policies that are in place. These will need to be updated, but also, a business will need to make preparations so that the additional bereavement leave can accommodate employees when it’s required.
For 2019 the issues surrounding transparency and fairness will continue from 2018. More employees are becoming aware of their rights and Companies will need to make sure that they are acting in accordance with their policies but first and foremost, the law.
With anticipated legislative changes it is always advisable for employers to address them as soon as possible so that they have a plan in place and sufficient resources to comply with what they are legally obliged to do.
About the author
James is on the Business Development & Account Management team at Neathouse Partners and regularly posts articles surrounding issues in HR & Employment Law, including case law & legislation updates. If you have a particular issue you would like addressed, feel free to drop James an email, and he will be happy to offer his assistance.
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