The Parental Leave Directive - how the Government’s “family-friendly” policies will be introduced in the coming year

The Parental Leave Directive

Clare Boneham explains how the Government's 'family-friendly' policies will be introduced in the coming year

The Parental Leave Directive ('the Directive') was adopted under the Social Chapter by all the EU member states, except the UK (which was not covered by the Social Chapter), on 3rd June 1996. The member states wanted to impose certain minimum requirements on parental leave and time off for urgent family reasons as an important means of reconciling work and family life and promoting equal opportunities and treatment between men and women. The deadline for implementing the Directive was June 1998.

Under the Labour Government, the UK has signed up to the Social Chapter and is now committed to implementing the Directive by December 1999. The main provisions of the Directive, and the Government's proposals for implementing it, are discussed below.

Parental leave

The Directive provides employees (both mothers and fathers) with the right to:

• 3 months' unpaid parental leave following the birth or adoption of a child, to be taken within the childs first 8 years,
• protection against dismissal on the grounds of an application for, or the taking of, parental leave, and
• return to the same job, or, if that is not possible, to an equivalent or similar job at the end of parental leave.

The Directive only sets out the minimum requirements on parental leave. It leaves it up to the individual member states to decide the detailed rules. In particular, member states may:

• decide whether parental leave is taken on a full-time or part-time basis, in a piece-meal way or on a flexible time credit system,
• make entitlement to parental leave subject to a qualifying period, provided that it is no longer than one year,
• establish notice periods to be given by the employee when exercising the right to parental leave, and
• define the circumstances in which an employer is allowed to postpone the granting of parental leave for justifiable reasons, for example: where work is of a seasonal nature; where a replacement cannot be found within the notice period; or where a significant proportion of the work force applies for parental leave at the same time.

The Directive recognises that the needs of small firms should be taken into account and that special consideration may need to be given to the circumstances of adoption.

Time off for urgent family reasons

The Directive also provides that employees should be entitled to time off for 'urgent family reasons', for example, in cases of sickness or accident.

The Directive does not specify how much time an employee should be allowed to take off work. The conditions for access to time off and the details of its application have been left up to the individual member states to decide.

Implementation in the UK

Legislation will be required in the UK to implement the Directive. In its White Paper 'Fairness at Work' published in May 1998, the Government set out its proposals for implementing the Directive which it confirmed last December. However, it wishes these rights to be consistent with other rights for parents and will therefore amend existing maternity provisions at the same time.

The Government proposes to:

• give employees the right to parental leave after one year's service,
• provide for the contract of employment to continue during the whole period of parental leave, unless it is expressly terminated by dismissal or resignation,
• provide similar rights of return after parental leave as already apply after maternity leave, i.e. the right to have one's old job back or, if that is not possible, to be given a suitable alternative with equivalent terms and conditions of employment,
• provide three months' unpaid parental leave for adoptive parents - although it is not proposed that adoptive mothers should have the same maternity rights as birth mothers. Currently, parents who adopt a child have no legal right to take time off work. Any leave must be negotiated with their employer,
• give employees the right to reasonable time-off for family emergencies, which will apply to all employees regardless of service. Currently, employees have no legal right to take time-off for family emergencies, and
• protect employees against dismissal or other action if they exercise the right to parental leave and time-off for urgent family reasons.

The Government still needs to address a number of important issues before it is in a position to implement the Directive including, what may amount to 'justifiable reasons related to the operation of an undertaking' for the purpose of postponing the granting of leave, the particular circumstances of casual and temporary workers, the definition of 'parent' and 'family' etc.

The adoption of the Directive via the forthcoming 'Fairness at Work' legislation marks a significant step towards recognition of the importance of family friendly employment practices. Employers should start reviewing their current practices now to make sure that they are prepared for the changes ahead.