2020 represents a big year in terms of employment changes in Jersey. The changes to family friendly rights which are due to come into force in July 2020 (the exact date is still to be confirmed) is going to see comprehensive changes to the law. The underlying ethos behind the legislation is to encourage gender balance in relation to childcare.
We are encouraging clients to get to grips with the changes and implement a pathway to compliance soon. We have summarised the key changes which employers are going to need to consider in early 2020 below.
So what has changed?
Prior to the proposed family friendly amendments being approved by the States, the respective parent or those with parental responsibility for the child were entitled to different periods of statutory leave which can be broken down into maternity leave for the mother and paternity for leave for the father. At present, the mother of the child is entitled to 6 weeks paid maternity leave and the father is entitled to 2 weeks paid paternity leave.
The proposed changes which have been approved by the States is that regardless if you are the father or mother of the child you will be entitled to an equal amount of Parental Leave, abolishing the distinction between paternity and maternity leave.
When the amendments come into force, all employees who qualify for parental leave will be entitled to parental leave amounting to a maximum of 52 weeks in total, of which 6 weeks will be paid at full remuneration. The 52 weeks leave can be taken over a 2 year period from the date of the child is born.
Who Qualifies for Parental Leave?
To qualify for the parental leave the employee must be:-
1. the mother of a child;
2. a person who has a qualifying relationship with the mother or adopter of a child, has, or expects to have, responsibility for the upbringing of the child, or the main responsibility (apart from any responsibility of the mother) for the upbringing of the child;
3. is the adopter of a child; or
4. the intended parent or parents in a surrogacy arrangement.
An employee is entitled to attend an unlimited number of ante natal care appointments. However, the employer only needs to remunerate the employee for 10 hours. This also applies to adoptive parents attending appointments and also parents in a surrogacy arrangement.
Rights Which Remain In Place
There are a number of rights which will remain in place post the family friendly changes:-
1. Right to return to work and to the same job after any parental leave;
2. Discrimination on grounds of sex or pregnancy/maternity remains prohibited; and
3. The law in relation to flexible working remains unchanged (although see below for additional rights in this regard).
So what has been added?
Mothers who are breastfeeding will be able to request temporary variations to their statement of terms/employment contract. The request must be heard within 7 days from the application and the employer has 14 days from the date the application is made to give a verdict from the meeting with the employee.
If a mother has returned to work within the 52 weeks from the birth of the child, she will be entitled remunerated breaks for the purposes of breastfeeding. Once the 52 week period is complete, any time off for the purposes of breastfeeding or expressing milk would be unpaid.
The forthcoming amendments will place an obligation on employers to take all reasonable steps to provide facilities for breastfeeding. In determining what steps are reasonable, the employer should factor in:-
(a) the extent to which any steps are, or would be if taken, effective to provide suitable facilities;
(b) the practicality of any steps which are or proposed to be taken;
(c) the extent of the financial, administrative and other resources available to the employer, including any provided by a third party, for the purpose of taking such steps; and
(d) the characteristics of the employer such as the nature and size of the employer’s business.
Best practice will be for employers to introduce (if they have not already) a policy on breastfeeding. This should deal with how employee requests should be made and dealt with. This will assist employers with making fair decisions when handling requests. A failure to introduce a fair process could see the employer become susceptible to claims for unfairness and in the worst case scenario discrimination claims.
In relation to the facilities that the employer may want to consider, employers should be thinking about:-
• Private spaces;
• Fridge and storage of the expressed milk: and
• Adjustments the workplace.
Next Steps For Employers
It is going to be another busy year ensuring compliance with the forthcoming changes. Therefore we have set out what we believe your proposed next steps should be:-
1. It is time to be having discussions at senior management level about when and how you will implement these changes and what financial implications these changes may have for your business;
2. It is time to review your template contracts of employment, policies/procedures and staff handbooks to ensure compliance with the changes;
3. Early engagement with staff and line managers is going to be essential in delivering the changes ahead of June/July 2020;
4. Consider if board or line manager training needs to be introduced to highlight the changes in this area. Remember the employer defence can only be run based on reasonably practicable steps taken prior to an alleged incident of discrimination; and
5. Be prepared that there may be further changes. The States have confirmed they are going to review the forthcoming changes in 2 years’ time.
Please click to download the Family Friendly Law Amends 2020 briefing note.