Employment Law Focus: Working parents

In this new episode, recorded just before the latest lockdown and a return to homeschooling for many families, we discuss:

• What’s a socially and politically acceptable way of managing working parents during the pandemic and moving forward?
• How far does the law require employers go to identify those who are struggling and need more support?
• What can we learn from the historic uptake of initiatives like shared parental leave, and should childcaring be a protected characteristic under the Equality Act?
• How has the gender balance in childcaring during the pandemic affected employees and the risk of a claim for direct or indirect sex discrimination?
• Is the UK’s legal framework for family friendly policies keeping pace with societal trends?

In our news section, we cover:

• New research from TLT that shows an increase in employees using interim relief applications. These can be challenging and costly for employers to deal with, and many HR teams will never have come across one before.

• A recent reminder of the need to be flexible to help parents with childcare commitments – particularly where a flexible contract has already been agreed.

Useful links

EHRC Working Forward campaign

Send us your ideas for future episodes – email emplawpodcast@tltsolicitors.com or tweet us using the hashtag #TLTemploymentpodcast and tagging @TLT_Employment

Listen to our other episodes.

Transcription

Jonathan Rennie:

Hello and thanks for joining us for this episode on working parents. I'm Jonathan Rennie, a partner in TLT's UK-wide employment team, and I'm joined today by Leeanne Armstrong, legal director in our Belfast office, and also Sarah Maddock, a professional support lawyer in our Bristol office. And again, we're all recording this from home. 

For the next half an hour, we'll be discussing the topic of working parents: looking at the trend of increasing legal support and protection for working parents, reforms that are on the table which are intended to strengthen parental support, and how to tackle issues that can arise for employers. Of course, we'll consider how this has been affected by the pandemic and where things are likely to go from here.

Leeanne Armstrong:

If there's one thing that stands out in my mind about being a working parent in 2020, it was having to balance my working demands with having two very young children at home, six and three, whilst school and nursery was shut. I think to say it was a challenge is probably an understatement. 
In fact, people listening to this podcast may well have heard of another podcast on parenting during lockdown called Lockdown Parenting Hell. It was hosted by two working from home comedians, Josh Widdicombe and Rob Beckett, which provided a very funny take on the parenting joys of being confined to the house with your children in a pandemic. But I think hellish is probably a fairly accurate description of what it was like at times.

Sarah Maddock:

Yeah, I think I'd have to agree with that, Leeanne. I had two school-aged children at home during lockdown, and having to remind myself of how to do long division while simultaneously holding down the day job and trying to stop the children making guest appearances on Zoom calls was an interesting experience. And having attempted home schooling for a few months, I'm now pretty firmly of the view that all teachers should receive knighthoods. 
And looking further ahead, whilst the pandemic has obviously been a huge feature in working parents' lives – and as we'll talk about more later, it's likely to have a long-term impact – all the pre-pandemic issues that we've been grappling with for years have not gone away, and are still very much on the agenda.

Sarah Maddock:

And when we think about the law that's there to protect and support working parents, a lot of this is about ensuring that employers are flexible so that employees can balance their work and parenting responsibilities whilst at the same time being pragmatic and protecting the needs of the business. 
And layered on top of this, there's the really interesting question of the extent to which government is or should be driving change to encourage employers to support working parents of both genders, or whether the legal framework has to adjust to keep pace with changing societal trends. 
So I think that's why all the issues around working parenthood has been such a huge part of the Covid narrative, and a big focus over the last nine months. And I think that we're going to see an awful lot of changes in the law moving forward.

Jonathan Rennie:

Definitely. This has been a big topic for many years and is set to stay at the top of the agenda for employers for some time yet. 
Before we dive into this, there are a couple of stories we wanted to touch on in case you haven't seen them already. First of all, we wanted to tell you about some interesting and somewhat alarming developments on something called interim relief. 

Anyone listening who might ever have any involvement in managing or defending employment tribunals will want to know about interim relief applications. They're highly time critical and can be very costly for employers if granted. Up until now, they've been very little used, but have suddenly started to make an appearance, and you need to know what to do if one crosses your desk.

Jonathan Rennie:

As the name suggests, interim relief provides immediate assistance for dismissed employees pending their employment tribunal hearing. What we found when we did some digging into tribunal figures is that the number of employment tribunal decisions that mentioned interim relief in 2019 was 41% higher than in 2018, and 63% higher than in 2017. 

The number of interim relief applications for this year currently sits just below the total for 2019, but the trend suggests that we will see a marked increase once this year's data becomes available. This is backed up by what we're seeing in all of our offices. There's definitely a marked uptake in interim relief applications seen here at TLT, whereas previously they'd been pretty rare. I think in fact, over the last 15 years, I've only seen one or two interim relief applications. But Covid has clearly meant that they are now taking centre stage due to the long delays we are now seeing in getting cases to tribunal.

Jonathan Rennie:

So what happens if a claimant gets an interim application granted? Well, the employment tribunal can force the employer to reinstate the dismissed employee back into their original role, or they can be re-engaged into a suitable alternative role pending the final hearing. 

The tribunal can make something called a continuation order. This preserves the employee's employment, meaning essentially that the employer continues to pay their salary and their benefits and their continuous service is unbroken all the way up until the date of the hearing. 
Given the current delay for cases reaching final hearings could be as long as 12 to 18 months, you can clearly see why this could be quite a hefty financial burden. Plus the income is taxed as compensation, so the employee actually receives more than they would have done had they remained employed. 
And the sting in the tale is that even if the employee is ultimately unsuccessful at their final hearing, and it turns out that in fact their dismissal was completely fair, they will still receive their full wages for the full time up until that hearing, and don't have to pay that back.

Jonathan Rennie:
So taking all of that into account, the obvious question is why we haven't seen these applications in every single case. Well, they're only available in very limited, automatically unfair dismissal cases. So for example, dismissals because of trade union activities, because of health and safety reasons, or for making whistleblowing disclosures. 

Also, the cost to employees to bring an application for interim relief can be a deterrent, and the bar is set quite high for an application to succeed. It will only be granted if an employment judge thinks the claimant is very likely to succeed at a final hearing. So, the judge must essentially think the case looks like a winner and this is then decided at a preliminary hearing.

Jonathan Rennie:

If one of these applications comes in, you need to recognise it and act very quickly. In fact, the preliminary hearing to decide whether to grant that application can be convened on as little as seven days’ notice. So essentially, you will need to have your whole case pretty much up together for that preliminary hearing, and you will most likely need to get a barrister on board who has experience of defending these applications and put back together all the papers very quickly. 
So if you're hit with an application for interim relief, you have to almost entirely front-load your field defence and preparations before that preliminary hearing, and you need to do it very quickly. So perhaps the most important point here is to ensure that anyone who might receive such an application for interim relief acts immediately, and we can help you from there.

Leeanne Armstrong:

Thanks Jonathan. And those applications are certainly something that we're keen to keep an eye out for over the coming year. 
Moving on then to our second story, in case you missed it. A very interesting case of Agarwal v St John's Freight System UK. And this was a discrimination case heard just in September past, and it's very much in tune with the topic of this podcast because it concerned a pregnant employee whose boss told her that she should resign because of her childcare commitments, after an illness that was linked to pregnancy. 

When this employee took up her post, her offer with her employer included details of a flexible working arrangement that had been agreed at the time she was being on-boarded, and it stated that she would work in the office from 9:00 AM to 3:00 PM, but that from 4:30 to 5:30 PM, she could work from home.

Leeanne Armstrong:

Now there were difficulties with this employee undertaking her role effectively during that hour that she was working from home. Ms Agarwal found it difficult to undertake her work using her own mobile phone, but the arrangement did stay in place. Sadly then, the claimant, Ms Agarwal had to take some time off for a medical problem that was connected with her pregnancy. But unfortunately, rather than being sympathetic, her employer told her that she would need to come back and work in the office full time, and if she couldn't do that, she should resign as he needed staff who could work full time. 

Now the employer gave evidence at the tribunal hearing that he had planned to change Ms Agarwal's orders anyway, and that the working from home arrangement earlier in the year would come to an end – and that he had drafted an email that he was going to send out to her raising the issues that he had, but that after a discussion with a member of staff, he decided not to send it.

Leeanne Armstrong:

However, having heard all the evidence, the tribunal weren't satisfied that there was ever any clear instruction or requirement, or even a decision to seek to formally change Ms Agarwal's working hours. Instead, the tribunal accepted Ms Agarwal's evidence that she had not been told that that was going to be required of her, and if that had been the case and she had been told, she would have had to tell her employer that she was unable to go back into the office full time simply because of her childcare commitments. 

In her decision, the employment judge found that the employee's pregnancy related illness was in fact the trigger for the requirement to come back in and work in the office full time, and had it not been for that pregnancy related illness, it wouldn't have been imposed on her otherwise. So the finding was that the claimant had been treated unfairly. She was awarded over 18,000 pounds for loss of earnings and injury to feelings, plus then an uplift and interest on that award.

Leeanne Armstrong:

Let's return to today's main topic, then: working parents. So as we've mentioned, the sudden shift to home working has been a reoccurring constant theme during the first national lockdown. What was interesting about this was that literally overnight employers had to be very alive to the personal situations of their employees and flex their standard policies, including, to deal with the needs of working parents. And it's so easy to underestimate the complexity of this, I think, because it's such a personal thing and the situation will vary considerably from one employee to the next. 

And it's also such a political issue that it raises a lot of questions about what's the politically and socially acceptable way of managing the workforce moving forwards?

Jonathan Rennie:

Yeah, although many employers did start to embrace more agile working before the virus, the pandemic has obviously been a catalyst to change and forced most businesses to fast track some pre-existing trends. One of these is undoubtedly the adoption of remote working and flexible working practices, something that has been previously evolving more through state intervention and regulation, or employers consciously deciding to break away from the norm. 

During the pandemic, remote working has been more extensive than any business could ever have imagined previously, but some businesses have already announced plans to formalise these arrangements after the pandemic ends, having been very pleasantly surprised by how successfully home working has gone. We've seen very little evidence of a reduction in productivity since office workers have been banished from the office.

Jonathan Rennie:

Some, like Lloyds Banking Group for example, are moving some or all of their staff into permanent home working roles. And it's been reported that Lloyds have told staff that increased home working will help them improve their work-life balance. Others have suggested more of a hybrid approach with employees able to work from home for part of the time. 

There's certainly appetite from employees for this as well. A recent YouGov survey showed that four in ten people want to work from home some of the time (that hybrid approach); two in ten want to work from home all of the time; and only four in ten don't want to work from home at all. 
But despite all of this, we are still seeing some reluctance from employers to embrace the idea of properly embedded, flexible working into their future practices. A recent survey showed that 78% of job advertisements published over the last year did not mention the possibility of flexible working at all, with only a rise of 5% mentioning it since the first national lockdown.

Leeanne Armstrong:

Yeah Jonathan, and I think another thing employers will need to be mindful of is the danger of assuming that because employees have been working remotely and potentially working flexibly for some time now, that it's in any way easy and that employees have successfully adapted to that way of working. I mean, there's a whole host of reasons why this might not be the case, and there's definitely a mental health and wellbeing aspect to this as well.

Sarah Maddock:

Yes, Leeanne, I think that's definitely true, and something which can be easily overlooked. I know that for many other parents, working remotely, balancing work with home schooling, staggered school times, and more care duties is difficult and always runs the risk of stress, work-life blur and exhaustion. 
I know a lot of employers have enhanced their wellbeing offering for employees as a result of the pandemic, and it's going to take many months, if not years after we’ve settled into a new normal way of working after the pandemic has subsided, to find a way of working while managing stress and avoiding burnout.

Sarah Maddock:

Anecdotally, I've certainly heard the comment that working from home can feel a bit more like living in the office. And of course, working from home is not a panacea for working parents. 

As a term, remote working as such is often used almost interchangeably as a term with flexible working, but it's not the same thing at all. Employees working from home may still be required to work at the same fixed hours and possibly even longer hours than when they're in the office, with the pressure to always be on and never having that clear demarcation between home and working life. And with work often being quite closely monitored at home, working from home does not necessarily mean that an employee is always remote in the true sense of the word.

Jonathan Rennie:

Absolutely, Sarah. I think that's true and spot on. Employers need to find ways to tackle that. For example, employees should be encouraged to shut down digital devices such as laptops and work phones outside of working hours, and there should be extra support to people to achieve greater access to parenting time, time with children, and just get away from that desk. 

New research by the London South Bank University showed that intensive remote communications can harm employee wellbeing at work if left unregulated. I think, speaking for myself, I've established a three hour threshold for Zoom calls, and my enthusiasm for that, like many people, has waned slightly, if I'm being honest. 
Based on the findings of the research, the report's authors said employers needed to be aware of employees’ need for rest breaks: time to recover from the demands of remote working. They needed to be firm with staff not to go beyond working core hours, which is all too easy and it’s very, very easy to stay logged on, of course. The findings also underlined the need for employers to support staff who already have extra demands on their time because of caring and other responsibilities.

Sarah Maddock:

Yes, I think a lot of parents, Jonathan, who are working from home will recognise their own challenges in the findings of that study. The dual pressures of what's been dubbed the double shift of paid work and unpaid caring work for the family can lead to a real risk of burnout. 
And this is particularly true during Covid times. Some of the stresses might have changed, but in a lot of ways, the pressures are greater. So if you put together the uncertainty of a global health pandemic, a sudden lack of social interaction, and having children home from school during the day for families self-isolating, put that all together and you have a recipe for burnout.

Jonathan Rennie:

Yeah, so I think our previous episode on burnout has been one of our most popular so far, and we produced that before the Covid pandemic hit, and it shows just how wide an issue this has become and how important it is for HR and legal teams to deal with this. Indeed, the World Health Organisation, as we know, classed burnout as a workplace disease in May 2019. So it's worth checking out that podcast episode on burnout if you get the chance.

Sarah Maddock:

And staying with mental health and wellbeing for a moment, the International Organization for Standardization, ISO, is currently overseeing the development of a ISO 45003, which is a new international standard for psychological health and safety in the workplace. This really brings home that employers are going to have to embrace mental health and wellbeing of their workers as being key for resilience and sustainability of their workforce. And I think this is a really positive step that there's now an objective standard for employers to work towards in terms of safeguarding their employees' psychological health, as well as their physical health.

Leeanne Armstrong:

Yeah, Sarah, I think this is definitely something which is all too easy to overlook. I mean, often, particularly in our line of work, we often find ourselves advising about how to deal with employees who are malingering or swinging the lead as you would put it. 
But it's important to remember the equally tricky issues on the flip side of that. You've got problems with presenteeism, employees who are just soldiering on, particularly those who are struggling with stresses. They're keeping multiple plates spinning at work and at home, and they're contending with all the additional pressures of the current crisis that you mentioned, Sarah. So I think now more than ever, employers should be aware of that invisible burden of mental health issues that employees may be bringing to work. 

And this is something that will fall squarely within an employer's responsibility – even if, as often is the case for psychological illness, the employee doesn't explicitly bring it to their employer's attention, which is now probably even more difficult to spot than it was pre-pandemic, because you don't have employees physically present at work.

Jonathan Rennie:

I definitely agree with that, Leeanne. It's not an issue which gets as much attention as it deserves to and as much attention as those employees with physical ailments. But I think there was a tribunal case here giving an example of this type of situation recently, if you're able to give us some help with that.

Leeanne Armstrong:

Yeah there was, Jonathan: a 2019 discrimination case called A Ltd v Z. And it's a good example of what employers should be looking for (although the facts of this case are quite extreme), but just putting this in the context of the importance of employer knowledge, if you're faced with a disability discrimination case. 
So in this particular case, the employee Ms Z was dismissed from her post. She was a finance controller and she was dismissed because of a record of her time keeping and attendance. And she brought a claim of disability discrimination under section 15 of the Equality Act. And for those of you who maybe aren't aware, section 15 is discrimination arising from disability. 

At the tribunal, Ms Z produced psychiatric reports detailing her struggles with stress, depression, low mood, schizophrenia, and these conditions led to serious overdoses, self-harm, regular cannabis use. She spent a period as an inpatient in psychiatric care. She had a diagnosis of being emotionally unstable. She suffered from a personality disorder and paranoid schizophrenia. So a really, really serious mental condition that this lady suffered from.

Leeanne Armstrong:

Now, although her employer, A Ltd, had no actual knowledge of Ms Z's disability, the tribunal held that it should've made more inquiries given the clues that were available to it. And thus, they determined that the employer had constructive knowledge for the purposes of the Equality Act. 
Now, this decision was appealed to the EAT, and the EAT overturned the tribunal's finding because what they said was Ms Z was so determined to conceal her mental condition that even if A Ltd had made further inquiries, Ms Z probably would have continued to cover up the truth. 
So I think what this case shows is that where there is evidence that an employee is struggling, that will be enough to put an employer on notice that further investigations need to be carried out, but employers won't be responsible for discrimination against employees who are determined to conceal their illness to an extreme extent. Which I think means that employers should encourage employees to try to be more open about mental illness.

Leeanne Armstrong:

And this is something else again that has been talked about for a period of time now, before the pandemic. We want to take away the stigma of talking about mental illness. Otherwise not only does it make it more difficult for the employee to access help, and they may also lose the protection that was there for them under the Equality Act. And then from the employer's point of view, the decision in the claim brought by Ms Z, it's certainly reassuring in that they will not be responsible for an employee's mental injuries if that employee is really determined to keep them hidden. But clearly it's a situation which both employers and employees would want to avoid if at all possible.

Jonathan Rennie:

Having looked at some of the wellbeing challenges around working families, what does the legal framework look like in relation to equalities protections for working parents or what legal risks should listeners be thinking about?

Sarah Maddock:

Well, as we've already touched on, this is a knotty problem. It seems that the seismic shift towards home working has unfortunately not been mirrored by an equally seismic shift towards equality. Alarmingly, a recent poll commissioned by the work-life balance charity Working Families found that one in five working parents said that they feel that they've been mistreated at work because of their childcare responsibilities since the coronavirus crisis began. 
And the increase in the number of free childcare hours available to eligible parents of three and four year olds across the UK, for example, was intended to ease the burden of high childcare costs for working parents. But a recent survey by the campaigning organisation Pregnant Then Screwed showed that 74% of women had worked fewer hours due to the lack of childcare, and 52% of women said that this lack of childcare had led to negativity from their employer.

Sarah Maddock:

The most obvious legal risk for employers who fail to work flexibly with parents is indirect sex discrimination under general Equality Act provisions. Ironically, though, at the moment, the ability to bring an indirect sex discrimination claim for a failure to allow an employee to accommodate childcare responsibilities rests on statistics which show that women are more likely to be primary caregivers. This is because statistics show that a greater proportion of female staff, compared to male staff, have primary childcare responsibilities. 

So any policy or practice which requires employees to stick to working practices which make childcare more difficult will have a disproportionately negative effect on women. So at the moment, a man with childcare responsibilities bringing a similar claim would be very unlikely to be successful because the statistics simply do not support the notion that men are more likely to be adversely affected by an inability to accommodate work and childcare.

Jonathan Rennie:

So to give an example, in the 2016 employment tribunal case of Downie v Coherent Scotland, an HR manager was dismissed from her post because she was unable to work full time due to childcare responsibilities. She had worked part time for her employer for more than nine years, but was then told that the company now needed a full time HR manager and she would need to increase her hours or be made redundant. As she could not work full time, the HR manager made several proposals to meet the employer's requirements, including reducing her hours to accommodate a job share, or increasing her hours to provide extra cover. But these were all rejected and she was dismissed. 

The tribunal found in this case that there was no justification for this decision and called the employer's approach to her proposals “incredible”. Ultimately, compensation was awarded for indirect sex discrimination and the HR manager was actually restored to her role.

Leeanne Armstrong:

That's a recent example, but actually the principle of indirect sex discrimination for failure to allow flexible working was established back in the 90s in a well-known case called London Underground v Edwards. Back then, the tribunal accepted that inflexible working arrangements had a disproportionately negative impact on women, but not men. 

You might think then, that in the last thirty years, the statistics on which that case had relied with women as the majority of primary caregivers might have changed and might even have been accelerated by the pandemic. However, the research which is coming out at the moment seems to be showing that, although home working arrangements were more evenly split between men and women during the pandemic, women still took on the majority of the responsibilities for home schooling children, and they have fewer uninterrupted working hours than men.

Sarah Maddock:

So, notwithstanding the legal analysis, employers still shouldn't assume that a male employee is less likely to want flexibility for childcare. And following ACAS guidance and general good practice, you should handle all requests consistently. 
And just to strike a note of caution here, and in the interests of gender balance; although we are still seeing the majority of claims for a failure to accommodate childcare being brought by women as indirect sex discrimination claims, remember it is still possible for a man to bring a direct sex discrimination claim for a failure to allow flexible working.

Leeanne Armstrong:

One of the ways in which the government has tried to drive change in the gender split of childcare responsibilities in recent years was with the introduction of shared parental leave back in 2015. As many listeners will be aware, this allows mothers to opt out of the assumption or curtail their maternity leave, as it's put in the legislation, and instead they can split up to fifty weeks of their leave and thirty-seven weeks of statutory pay with the other parent. 
And this can be done completely flexibly. So for example, both parents could be off at the same time for three months, or they could choose to rotate on and off shared parental leave. So you could have one parent who is at home for three months, and the other parent goes to work. And then they flip that for the next three months.

Leeanne Armstrong:

These are fairly complicated rules around how this can be agreed between parents and employers, what the working patterns would look like, effectively having to try and satisfy two employers in terms of working arrangements. And of course it's important to remember that mothers are still required to take that statutory minimum period of maternity leave that exists for health and safety reasons. So that's two weeks in most working environments, or four if you're in a warehouse type environment. 

So on the face of it, it sounds like a wonderfully flexible scheme, which should really go a long way towards eroding that assumption that women deliver the majority of care for a new baby. But perhaps some listeners will probably... well, maybe you'll be surprised to learn, maybe not, because the prospect of changing a nappy all day is not that appealing… but actually the uptake of the scheme in 2019 was only 2% of eligible couples.
Jonathan Rennie:
I'm absolutely blown away by how low that is. It’s quite astonishing when you've described it as a wonderfully flexible scheme. Can you tell us a bit more about why it seems to be so low?

Leeanne Armstrong:

Yeah, Jonathan, it's not completely clear. I mean, on analysis it could be down to the complexity of the scheme or possibly because the statutory element that people will be aware of in maternity leave situations where for the first six weeks the woman will get 90% of pay. That doesn't exist for shared parental leave. So that is paid at basic statutory rate. At the moment, that's £151.20 per week. 

And of course then we know that generally speaking in most industries, fathers more typically still earn more than their partners, so most couples are likely to look at what is most financially and economically viable for them, which often tends to mean then that the mother takes the time off to work and care for the baby.

Leeanne Armstrong:

And I suppose then the situation for encouraging shared parental leave probably wasn't helped by the Court of Appeal’s decision in 2019 in the well-publicised case of Ali v Capita Customer Management Ltd. And then of course we have the Chief Constable of Leicestershire v Hextall. And it's been widely reported, in both of those cases, that the court has held that it's not unlawful for employers to pay women on maternity leave enhanced payments (so to pay them more than men on shared parental). So you effectively can have a company enhanced maternity leave policy, but shared parental leave paid at statutory rate, and that is neither discriminatory nor a breach of equal pay legislation. 

Although there are many employers out there as a means of trying to encourage uptake with shared parental that are offering both enhanced maternity and enhanced shared parental leave. They're providing as many options to make it financially viable. This decision does mean that employers do have the option as to whether or not they provide better contractual benefits for people taking shared parental leave.

Leeanne Armstrong:

Another problem I think with shared parental leave could also be the lack of publicity and the awareness amongst employees generally. Research published in September 2020, so just a few months back there, found that knowledge of shared parental leave in the workplace was still really low. 
And interestingly, I remember going to a talk that was given by government lawyers who worked on the scheme itself when it was being introduced, and they said they expected the uptake to be very low initially, to the extent that they were benchmarking a 2% uptick as a resounding success. 
And their view is that changing societal assumptions – such as the ones that are around women being primary caregivers who will take time off to look after babies – that  o change that is like turning a super tanker. It's very, very slow and will take a range of different factors.

Leeanne Armstrong:

And of course a key factor is the gender pay gap, and the fact that working parents, you know it's often cheaper for women simply to take the time off work. But then there's an argument that the gender pay gap exists partly because of stereotypical assumptions about women needing to take time off work. 
So it all becomes a bit “chicken and egg” in terms of trying to close the gender pay gap, which might in turn equalise the financial impact of taking leave. But the pay gap is unlikely to narrow while women are still seen as primary caregivers. So hugely complicated, and unfortunately, it's just not a problem that we're going to solve in this podcast.

Jonathan Rennie:

We did say that we would try and give you our take on where we think things are going in terms of the legal landscape around working parents, so we're going to dust off the TLT crystal ball and run through some changes which we think are on the horizon.

Sarah Maddock:

Another reform which is on the table is greater transparency around employers’ policies on flexible working and family related leave and pay. This proposal is one of the many employment law reforms which were suggested by Matthew Taylor's Good Work Plan. 
In a nutshell, the new requirement would be for employers with more than 250 employees to publish their policies on flexible working and family related leave and pay on their website. It has also been suggested that these documents might also be available on a government database – a bit like the current gender pay gap portal. At the moment we're waiting for the outcome of consultations on these reforms, and these closed in October 2019.

Jonathan Rennie:

That's definitely an interesting one, and one I'd like to see, and I think could be an area where legal forum could really drive changes in our society. 
Another big development, of course, in terms of government regulation to drive change in society, is the Employment Bill, which was announced in the Queen's Speech on 19 December. This is awaiting its second reading in parliament, and amongst other things, the bill proposes the fairly radical reform that flexible working should in fact become the default position for all UK employees, unless the employer has a good reason otherwise. 

This seems now even more likely to become the law with the pandemic and its impact, which has shown not only that this is possible, but also preferable for many people.

Sarah Maddock:

That's right, Jonathan. And on a similar note, in terms of practical steps which can be taken to support working parents and help to keep momentum going on flexible working, employers listening to this might want to sign up to the Equality and Human Rights Commission's Working Forward campaign. This is a national network of employers who are actively working towards making workplaces as inclusive as possible. 
You can find out more on the Equality and Human Rights Commission's website, and you can also sign up on the website to publicly pledge your support for this campaign.

Sarah Maddock:

And finally, you might have read that the charity Working Families has asked the government to add childcare responsibilities to the list of protected characteristics in the Equality Act. So if passed, this would mean that working parents would be specifically protected from direct and indirect discrimination at work in the same way as employees are currently protected, for example, if they have a disability.There is no information available at the moment as to whether or not the government will take this forward. And even if they did, it would require a change to the Equality Act 2010, which would take some time. So, even if this is implemented, it will be some way off yet. But it's interesting to see this being put on the agenda as a possibility.

Indeed, as Working Families have pointed out, the Prime Minister has said that if people cannot go to work because they cannot get childcare, then they must, and I quote, be defended and protected, close quote. 
Having said all of that, even if having caring responsibilities doesn't become a new specific protected characteristic under the Equality Act, as we've just pointed out earlier on in this podcast, there are a range of legal protections already in place which would come into play if an employee is treated unfairly because of their family responsibilities.

Jonathan Rennie:

Thanks for listening and thanks to all of our subscribers and those of you who share our episodes on Twitter, for example. We aim to cover the biggest issues that HR and legal teams are facing, so please let us know if there's a topic or question that you'd like us to cover in our future episodes. 
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