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Thematic chapter

Directive 2019/1158 on work-life balance for parents and carers in the UK: the Brexit effect

Oxana Golynker et Pascale Lorber
p. 108-119

Résumés

La directive concernant l’équilibre entre vie professionnelle et vie privée sera l’une des premières mesures de droit social européen à ne pas s’appliquer au Royaume-Uni dans l’environnement post-Brexit. Dans ce domaine, les employés britanniques bénéficient cependant déjà d’un certain nombre de droits issus de la nouvelle directive, ou même de protection plus généreuse. Certaines des provisions de la nouvelle directive constitueraient néanmoins de nouveaux développements bienvenus.

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  • 1 The existing EU-derived provisions of employment law have been retained, but may be changed in the (...)
  • 2 Directive (EU) 2019/1158 of the European Parliament and of the Council of 2o June 2019 on work-life (...)
  • 3 Directive 2019/1158 Art. 20(1).
  • 4 Directive 2019/1158 Art. 20(2).
  • 5 The EU and UK Withdrawal Agreement [2020] OJ L29/7, Art. 127.

1The exit of the UK from the EU on 31 January 2020, following the referendum in June 2016, has put into question the future of reconciliation of work and family life policy and legislation in the UK1. Unless otherwise agreed, the UK will be under no obligation to implement Directive 2019/1158 on work-life balance for parents and carers2, because the transposition date of 2 August 20223 (2 August 2024 for parental pay provisions4) falls outside of the transitional period ending on 31 December 2020, during which the UK continues to be bound by the EU Law5. In this article we analyse the extent to which the current EU legislation might already meet or exceed the requirements of Directive 2019/1158 and where the UK working parents might benefit from the alignment of UK legislation with the Directive.

I - Paternity leave

  • 6 Council Resolution of 29 June 2000 on balanced participation of women and men in family and working (...)
  • 7 Directive 2019/1158 Art. 4.
  • 8 The Paternity and Adoption Leave Regulations 2002 (SI 2002 no. 2788), reg. 5.
  • 9 Directive 2019/1158 Art. 4(1)
  • 10 Directive 2019/1158 Art. 8(2).
  • 11 Women and Equalities Committee, House of Commons: First Report of Session 2017-2019, Fathers and th (...)
  • 12 EHRC, Women’s rights and gender equality in 2018: update report (Equality and Human Rights Commissi (...)
  • 13 Working Families, « Increase the Joy: Improving Shared Parental Leave » (Working Families, 2018) : (...)
  • 14 « Good Work Plan: Proposals to support families », Consultation, July 2019: https://beisgovuk.citiz (...)

2Until recently, the UK offered working fathers and partners more rights than it was required under the EU legislation which merely encouraged the Member States to recognise distinct rights to paternity/adoption leave6. The right to statutory paternity leave and pay was introduced in the UK by Employment Act 2002 with effect from April 2003. In some respects, the provisions of UK legislation on paternity leave are similar to the requirements of Directive 2019/1158 which provides for 10 days of paternity leave on the occasion of the birth of a child before or after the birth7. In the UK, working fathers are entitled to up to one or two consecutive weeks of paternity leave which can be taken within the period of 56 days beginning with the birth of the child8. The relative inflexibility of paternity leave in the UK and the low rate of paternity pay do not contradict the Directive which gives the Member States freedom to determine how flexibly the entitlement can be used9 and links the pay rate to sick pay10. The pay entitlement may even exceed the requirements of Directive 2019/1158. The UK fathers and partners are entitled to statutory paternity pay at the statutory rate (currently £151.20) or 90% of average weekly pay, whichever is lower. The statutory paternity pay rate is higher than the rate of sick pay (currently £95.85) which is required under the Directive. At the same time, paragraph 30 of the Directive’s Recital encourages Member States to provide for a payment or an allowance for paternity leave that is equal to that provided for statutory maternity pay. This would benefit fathers because the first six weeks of statutory maternity pay in the UK are paid at 90% of average weekly earnings. Unfortunately, there is an indication that the present UK government is unlikely to be inspired by the Directive and equalise maternity and paternity pay as a proposal by the Women and Equalities Select Committee that the first four weeks of paternity leave should be paid at 90% of weekly earnings with a cap for high earners was rejected11. Nevertheless, due to the pressure from Equality and Human Rights Commission12 and Working Families advocacy group13 to introduce a well-compensated stand-alone paternity entitlement, the Government returned to the review of paternity leave and pay in its ‘Good Work Plan: Proposals to support families’ consultation in 201914. The Consultation specifically referred to the Directive as a comparison point. Therefore, the possibility of some alignment with the Directive and improvement of paternity pay conditions cannot be ruled out.

  • 15 J. Lewis and M. Campbell, « UK Work/Family Balance Policies and gender Equality 1997-2005 » (2007) (...)
  • 16 Equality and Human Rights Commission: Working Better: Fathers, family and work - contemporary persp (...)
  • 17 Promoting Uptake of Parental leave and Paternity Leave Among Fathers in the European Union (Eurofou (...)

3The history of the review of paternity leave entitlement in the UK shows that the flexibility of entitlement and the level of pay are important for the entitlement to be meaningful and effective. The rigidity of how and when paternity leave can be taken and the low rate of paternity pay have been criticised as the reason for the low uptake of paternity leave. There was a clear connection between the uptake of paternity leave by the fathers and the conditions of pay15. A survey commissioned by the EHRC revealed that 55% of new fathers took paternity leave to spend time with their newborn baby and partner. Of the 45% of new fathers that were unable to take paternity leave, 66% said they would have liked to, with the most common reason for not doing so was being that they were unable to afford to take the time off16. The longer the leave, the more influence the pay makes on the uptake17. This means that, regarding paternity pay conditions, neither the requirements under the Directive nor the UK legislation enable fathers to become equal partners in the upbringing of children.

  • 18 Directive 2019/1158 Art. 4(2).
  • 19 Directive 2019/1158 Art.8(2)
  • 20 Fathers and the Workplace, 16.
  • 21 Directive 2019/1158 Art. 2.
  • 22 Fathers and the Workplace, 16, n11.
  • 23 Case C-393/10 O’Brien v Ministry of Justice ECLI:EU:C:2012:110, para. 44. See also N. Kountouris, « (...)

4Where UK fathers would benefit under the new Directive is that paternity leave under the EU legislation is a day one right18, although the Directive allows Member States to make the right to pay subject to employment requirement of no more than six months19. Under the UK legislation, both the rights to paternity leave and pay are subject to the father having been continuously employed for at least 26 weeks prior to the 14th week before the expected week of childbirth. The qualifying period condition precluded 44,000 fathers from the entitlements in 201620. Also, the Directive may potentially enable more fathers in the UK to become eligible for paternity leave because it applies to all workers who have an employment contract or employment relationship as defined by the law, collective agreements or practice in force in each Member State, taking into account the case-law of the Court of Justice21. In the UK only those who have employment status are entitled to paternity leave and pay which typically excludes casual workers in gig economy22. A broad interpretation of ‘employment relationship’ as excluding only self-employed persons adopted by the Court in the context of part-time work23 would allow to challenge a narrower personal scope of paternity leave in the UK legislation.

II - Parental leave

  • 24 The Maternity and Parental Leave Regulations 1999. SI 1999 no. 3312, regs.13-15.
  • 25 Directive 2019/1158 Art. 5(1).
  • 26 Directive 2019/1158 Art. 5(4).
  • 27 Directive 2019/1158 Art. 5(2).
  • 28 South Central Trains v Rodway [2005] ICR 1162.

5Under the Directive each parent has an individual right to four months of parental leave in respect of each child up to the age of eight, two months of which are non-transferrable between parents. The UK law already contains more generous provisions: employees with responsibility for a child are entitled to eighteen weeks’ leave in respect of any individual child until the child’s 18th birthday24. The maximised duration of the leave and the age of the child under the UK law ensures that both parents are able to exercise their right effectively and on an equal basis, as required by the Directive25. The condition of one year continuous employment complies with the maximum qualifying period under the Directive26. According to the UK regulations, parental leave is not transferrable, and therefore, reflects the « use it or lose it » incentive underlying the non-transferability of at least two months requirement in the Directive27. The UK provisions have been criticised for their rigid requirement to take parental leave in blocks of minimum one week28. Yet, this would still comply with the Directive. Although Art. 5(6) states that that parents should be able exercise their right flexibly, the Member States are free to determine the modalities of application of this requirement.

  • 29 Directive 2019/1158 Art. 8(3).
  • 30 « Good Work Plan: Proposals to support families’ consultation », July 2019, 28 : https://beisgovuk. (...)
  • 31 Ibid., 27.

6The benefit of implementation or alignment with the Directive in the UK would be the introduction of the right to parental pay29 as, currently, parental leave in the UK is unpaid. The government’s concern is the cost to the taxpayer, because UK employers can re-claim at least 92% of family-related statutory pay through the tax and national insurance contributions system. In the case of small employers, 103% of the cost of statutory pay can be re-claimed from government. The cost for businesses is also taken into account, because absence from work comes at a cost to their employer both in terms of providing cover for the individual’s work (including recruiting temporary members of staff) and of training other members of staff to do the individual’s work30. Therefore, the main point of the current review of parental leave is the balance between the length of leave, the pay entitlement/rate, and the disruption to business31. The unintended result of alignment with the Directive might be introduction of the minimum pay rate accompanied by the reduction of the length of leave or the lower limit of the child age which might not encourage uptake of parental leave overall.

  • 32 The right to take 26 weeks of additional paternity leave was introduced in 2011 by the Work and Fam (...)
  • 33 J. Atkinson, « Shared Parental Leave in the UK: can it advance gender equality by changing fathers (...)
  • 34 Case 337/10 Neidel v Stadt Frankfurt am Main ECLI:EU:C:2012:263.

7The comparison between the Directive and the current UK regulations of working fathers’ rights is complicated by the presence of a hybrid entitlement to shared parental leave which, although evolved from « additional paternity leave »32, is not an individual father’s entitlement. Since the entitlement to shared parental leave was introduced in addition to paternity and unpaid parental leave provisions the scope for the argument of incompatibility with the new Directive seems to be limited33. According to the case law of CJEU, where Member States choose to introduce additional rights, more favourable than the minimum EU directive requirements, they are not prevented from laying down conditions for the exercise of those more generous entitlements34.

  • 35 Shared Parental Leave Regulations 2014. SI No 3050; The Statutory Shared Parental Pay (General) Reg (...)

8Shared parental leave was introduced by the Children and Families Act 2014 following the Consultation on Modern Workplaces launched in May 2011 by the Coalition Government with the aim of a comprehensive reform of maternity, paternity and parental leave in order to introduce a more flexible range of measures that would allow parents to share leave and pay entitlements in a manner tailored to their personal circumstances. Parents are now entitled to Shared Parental Leave up to 50 weeks which can be shared flexibly by working fathers and mothers, in addition to the individual entitlement of fathers to two weeks paternity leave. It can be taken by parents at the same time or in turns, before the first birthday of the child, and is paid up to 37 weeks, at the same rate as paternity pay35.

  • 36 See E. Caracciolo di Torella, « New Labour, New Dads - The Impact of Family - Friendly Legislation (...)

9The leave was a response to the criticism of the rigidity of the conditions attached to additional paternity leave that gave mothers and fathers a formal choice of the parental care roles, but not the flexibility: the father could take APL only if the mother returned to work. Moreover, the father’s right to APL was subject to the condition that the mother is entitled to statutory maternity leave or allowance. The timing was also restrictive: the first 6 months since the birth were reserved for the mother and not to be shared whilst additional paternity leave was to be taken before the child’s first birthday. Due to its dependent nature and the inferior conditions of entitlement, APL failed to bring more real flexibility into the body of family-friendly provisions of employment law and reinforced the idea that fathers are « secondary partners »36.

  • 37 H. Birkett and S. Forbes, « Shared Parental Leave: why is take-up so low and what can be done? Univ (...)
  • 38 H. Birkett and S. Forbes, « Where is Dad? Exploring the low take-up of inclusive parenting policies (...)

10Unfortunately, whilst replacement of additional paternity leave with shared parental leave improved the flexibility aspect, the uptake of shared parental leave which, according to recent surveys, has been as low as 1%-2%37. This can be attributed to several flaws in the design of this entitlement which affect mostly fathers. First, the right to shared parental leave depends on the mother’s decision to curtail her maternity leave and maternity pay/maternity allowance. This perpetuates the phenomenon of « maternal gatekeeping » which is linked to gender norms around caring and cultural constructions38 and undermines the concept of the father as an equal partner in child upbringing. Furthermore, single fathers are not entitled to shared parental leave.

11Second, the complexity of entitlement to shared parental leave undermines it’s effectiveness for fathers. In order to be eligible to make an application for SPL, the mother or father need to be employees and meet either the test of employment continuity (at least 26 weeks by the end of the 15th week before the due date (or the date of matching with the adopted child). If the mother can meet the conditions of eligibility, the father, in order to share the leave, would still need to meet the test of employment/self-employment and weekly earnings threshold test. Third, the conditions of entitlement to shared parental pay are complex and discouraging. In order to qualify for shared parental pay, fathers need to be eligible for paternity pay. Further, the father’s entitlement depends on the mother’s entitlements to maternity pay/allowance or adoption pay. Making shared parental leave a day one individual entitlement for fathers, in line with Directive 2019/1158, would be a step forward in regulation of shared parental leave.

  • 39 O. Golynker , « Family-friendly reform of employment law in the UK: an overstretched flexibility », (...)
  • 40 H. Birkett et S. Forbes, op. cit., vol. 27, no. 38.
  • 41 Joined case Ali v Capita Customer Management Ltd and Hextall v Chief Constable of Leicestershire Po (...)
  • 42 The unfortunate consequence of the earlier ruling of a Scottish court of first instance in Snell v (...)
  • 43 Ali and Hextall [66]-[67].
  • 44 J. Lewis, Work-Family Balance, Gender and Policy (Edward Elgar, 2009), 19.

12Moreover, the low paid shared parental leave widens the social gap between the wealthy, highly-educated high income earners who can afford SPL and families in low-paid jobs who cannot sacrifice their income39. Social inequality is further reinforced by the difference in employers’ policy and ability to enhance the statutory pay by more generous contractual arrangements which also tends to be made available to highly paid employees as a policy of recruitment and retention of talented workforce40. In Ali and Capita and Hextall v cases it was argued that the low rate of shared parental leave mainly affects fathers, because mothers have the choice to use their right to enhanced maternity pay during the first 6 weeks of maternity leave before opting out to shared parental leave. However, the Court of Appeal rejected the arguments of direct discrimination and indirect discrimination. The court held that a man cannot be compared to a woman on maternity leave because, under the Equality Act 2010, maternity leave is provided to new mothers to assist in their physical and psychological recovery from pregnancy and childbirth. A female employee on shared parental leave is the correct comparator (there is no difference in pay)41. Following the refusal of leave to appeal by the Supreme Court, the decision of the Court of Appeal on this matter remains definitive. However, the judgment in Ali and Hextall is most telling. It shows that any outcome in a case based on discrimination argument would be unsatisfactory. The victory for the fathers would mean levelling so that the mothers would lose the right to enhanced maternity pay42. At the same time, it brings into question justification of the policy of granting a long maternity leave combined with enhanced maternity pay on the grounds of physiological and other differences between mothers and fathers43. The way in which the flexible shared parental leave was introduced in the UK did not enable a « genuine » choice, because it did not address the constraints on choice44.

  • 45 A proposal to review the scheme of all work/life balance rights of parents has been made in « Good (...)

13The comparison with Directive 2019/1158 provides food for thought. If shared parental leave is aligned with the regulation of parental leave, the requirement of employment continuity could still apply, and the low rate of pay would be consistent with the Directive, but two months of the leave would need to become non-transferrable between parents (unlike 2 weeks under the current UK legislation). But, most importantly, the alignment with the Directive would require making the exercise of the right to shared parental leave by father independent from mothers. The most promising way to improve the rights of fathers in the UK would be to radically re-think the scheme of the entitlements to maternity, paternity, parental and shared parental leave and replace it with a child-care leave that would include non-transferable periods reserved to mothers and fathers as a well as flexibly shared periods with corresponding entitlement to pay at a rate that would be at least at the current enhanced rate of statutory maternity leave (90% of weekly earnings) in the first 6 weeks and an adequate pay during the remaining periods. At the same time, the current maximum length of parental leave and the child age limit should be retained, although the paid period can be limited45.

III - Flexible working

14Flexible working has been a long standing feature of the measures available to employees in the UK. It is also wider in personal and material scope, giving UK workers a more generous set of rules compared to what is found in the EU Directive. There are differences however in relation to reverting to the original working pattern at the end of the temporary period. However, there are plans for this to be reviewed in a new employment bill. Despite its more apparent « generosity », the legal framework has also been the subject of criticisms because of the wide justifications available to employers to refuse a request and the lack of take up by fathers despite the gender neutrality of the right.

15Flexible working is understood widely as in the EU Directive46. Statutes define it as a change to the numbers hours worked, times at which work is required or the place of work47. In practice, this covers part time work, homeworking, working in school times, working longer hours over a reduced number of days; early start and finish, etc.48. The right to apply for flexible working was introduced in 2002 by the Labour government as part of the endeavour to improve work life balance49. In its first iteration, the right was solely for the purpose of caring for a child50 and therefore was only accessible to parents of children aged 5 or under. Conditions were and are still attached to the right as the relevant employee had to have worked for 26 weeks before qualifying to make the request51.

  • 52 Work and Families Act 2006.
  • 53 See G. James, « The Work and Families Act 2006: Legislation to Improve Choice and Flexibility », In (...)

16While parents could change their terms and conditions to facilitate childcare, the demographic picture and ageing population triggered the need to widen further the right to employees who cared for adults52. These were defined as spouses, relatives, and adults leaving at the same address as the employee53.

  • 54 The Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations 2009, SI 2009/5 (...)
  • 55 See for example G. James (2006), 278.
  • 56 Children and Families Act 2014.
  • 57 See for example O. Golynker, « Family-friendly reform of employment law in the UK: an overstretched (...)

17The law was subsequently modified in 2009 and extended the right to parents for children under the age of 1754. From a child’s perspective, academics had criticised the unjustified distinction made between parents of younger and older children when it comes to balance family and work55. Caring responsibilities remain as demanding and difficult to manage with traditional working patterns after the age of 6. Finally, in 2014, the right was extended to all employees, removing the need to be a carer, in recognition that everyone is entitled to work life balance, whether a carer or not56. At first sight, the universal application of the right removed the possible tension that existed between carers and non-carers in the workplace, but it could be highlighted that the lack of focus on those who may suffer detriments in relation to career progression creates a difficulty as the caring that they undertake is not necessarily by choice and put parents at a disadvantage57.

  • 58 Directive 2019/1158, art 9(4).
  • 59 ERA 1996, s 80G.
  • 60 The full list is found in s 80G(b): the burden of additional costs, detrimental effect on ability t (...)
  • 61 BA v Starmer [2005] IRLR 862 (EAT) where British Airways refused the request of a female pilot to w (...)
  • 62 ACAS, Code of Practice on handling in a reasonable manner requests to work flexibly (2014).
  • 63 Directive 2019/1158, art 9(2).

18Today, all employees can request a change of working time or arrangements under section 80F Employment Rights Act 1996. The 26 weeks service qualification to access the right has remained and is in line with the current EU Directive58. While this is a right, it is only a right to request. The process to make such a request and the possible justifications open to employers to refuse the change of working pattern used to be regulated by statute but today, the employer is under a duty to deal with the application « in a reasonable manner »59 and to give a response to the employee within three months. The employee cannot make more than one request per year. The employer has a number of reasons that can be put forward to refuse the request and focus on operational demands and costs primarily60. The courts have been prepared to question employers’ reasons when the request to work flexibly has not been granted on grounds of cost and others61. To help employers and employees, the statutory rules are supplemented by a soft law Code of Practice62 which explains further how employers should deal reasonably with a request and lists good practices, such as having an internal appeal mechanism for employees if their request is rejected. The process found in UK law would therefore fit within the Directive’s requirements of responding to a request within a reasonable period of time and of allowing employers to justify a refusal63.

  • 64 ERA 1996, s 47.
  • 65 ERA 1996, s 104C.
  • 66 Directive 2019/1158, art 12 and 14 and Preamble (41).

19The only remedy available is if the process has not been followed and the rejection is based on incorrect facts. In this case, the employee may bring an action before the employment tribunal within three months, but the remedy is only financial, with a maximum of eight weeks pay. The employee is also protected against detriment for reasons related to the request for flexible working64 and dismissal65 as per the Directive66.

  • 67 Directive 2019/1158, art 9(1): « The duration of such flexible working arrangements may be subject (...)
  • 68 Directive 2019/1158, art 9(3).
  • 69 O. Golynker, (2015) 387.
  • 70 Directive 2019/1158, Preamble (35).
  • 71 Queens’ Speech, 19th December 2019: « Measures will be brought forward to encourage flexible workin (...)
  • 72 The Queens’ Speech - Briefing Background notes p. 43-44: https://assets.publishing.service.gov.uk/g (...)
  • 73 The Independent, « Employers should now always offer working from home as option, Matt Hancock says (...)

20Compared to the Directive, UK law currently does not cater for the temporary nature of flexible working arrangements in the sense that it does not limit the duration of the flexible arrangement67 or does not give employees a right to return to their original working patterns68 (e.g. from part time to full time). Any change to working hours is therefore a permanent change of the contract, what Golynker calls the « one way nature of the variation of contract »69. The lack of legal support to return to a full time position for example, can lock women in indefinite part time working and as the Directive acknowledges could lead to long term penalties for women who contribute less to social security schemes and pensions70. The current government is considering making flexible working the default position for all employees in a new Employment Bill71. This is only at the stage of a proposal72 and has not been fleshed out but it could be anticipated that the mechanisms put in place under COVID and the requirement to work from home as much as possible, will have made this proposal gain momentum73.

  • 74 CIPD, Flexible Working in the UK, June 2019, 3-4.
  • 75 CIPD, MegaTrends – Flexible Working, January 2019, 15.
  • 76 Hardy and Hansons Plc v Lax [2005] EWCA Civ 846.
  • 77 Unreported Employment Tribunal case. See BBC News, Father winds discrimination case : http://news.b (...)

21The latest figures show that the take up of flexible has increased but more slowly recently (the share of people having some kind of flexible working arrangements increasing between 23 and 27% between 2005 and 2017). The figures remain in comparison with other EU countries74 (with 25% of workers being part-time in the UK and 20% doing some work from home). However, flexible working is still gender biased as demonstrated by the statistics: women are more likely to have flexible arrangements than men75. The case law also demonstrates a gender bias towards employee who request flexible working. While it was established early on that refusing requests to work flexibly could amount to indirect sex discrimination given the disproportionate number of women applying for a change of working pattern to care76, men can also be discriminated directly on grounds of sex if a request to work flexibly is denied when women’s requests in the same position were answered positively77. Others have also criticised the move to make the right employee friendly rather than simply family friendly as it puts all employees in competition with each other’s.

22Overall, it is clear that the UK is already significantly compliant with the Directive. A number of provisions even seem to go further when considering the personal scope (all employees) and the length of time the right is open to parents (until the children are 16 years old). If the UK was to align its employment law standards, it could consider introducing measures that would remove the permanent change to employment contracts following a request for flexible working, in particular a return to full time hours or a more conventional working timetable. The next right introduced by the Directive would however add a new element to the work life balance package.

IV - Carers’ leave

  • 78 Directive 2019/1158, Preamble (27).
  • 79 G. James and E. Spruce, « Workers with Elderly Dependants: Employment Law’s Response to the Latest (...)
  • 80 The latest figures available reveal that between 2001 and 2011, the number of cares in the Uk had i (...)
  • 81 ERA 1996, s 57A and 57B.
  • 82 Case C-303/06, Coleman v Attridge Law [1998] ECR I-00621– where a legal secretary had eventually be (...)

23As highlighted by the Directive78 and in the UK79, carers, other than parents, need greater attention from the law given the obstacles to career that caring can entail or even the ability to stay in the labour market. Numerically, the number of carers is augmenting as a result of the ageing population and the increase in life expectancy80. In the world of work in the UK, carers are allowed to request flexible working, take unpaid leave for emergency81 and can be protected by discrimination law if their unfavourable treatment is explained by discrimination for association on disability grounds82. However the right introduced in the Directive would require some new legislative intervention in the UK in order to be compliant as currently, there is no carers’ leave.

  • 83 Directive 2019/1158, art 3(1)(d).
  • 84 Directive 2019/1158, art 3(1)(e).

24European law requires carers to be given five days unpaid leave per year. For this purpose a carer is a worker providing personal care or support to a relative or person living in the same household and who is in of significant care or support for a serious medical reason83. Relatives are defined as worker’s son, daughter, mother, father, spouse or, where such partnerships are recognised by national law, partner in civil partnership but the Directive encourages Member States to have a more exhaustive list including siblings and grandparents.84 The scope of the people who can be cared for in the UK would need to be defined should the law be amended in the UK, but under the old flexible working system, relatives and people living at the same address were included. Under the emergency time off regulations, there are references to dependants.

  • 85 Directive 2019/1158, Preamble (32).

25The right is unpaid as many others in the work/life balance portfolio (e.g. emergency leave) but the drafters of the Directive have encouraged Member States to consider payment to increase the take up of the leave85. Should this right be transposed in the UK, it is unlikely that pay will be required given the track record of previous government when it comes to unpaid leave (e.g. emergency leave or parental leave).

  • 86 Directive 2019/1158, art 6.

26The application of the right is widely left to Member States’ discretion in relation to conditions attached to the right (length of service for example), the period of reference to exercise the right (a year or other period determined by the implementing law) and whether the medical condition suffered by the relative should be documented or evidenced86.

27As a result, even if the UK implemented the Directive, there would be a national flavor to this right. Whether the content of the Directive influenced the current government or not, the Employment Law Bill stated that an entitlement for one week unpaid leave for carers will be introduced87.

Conclusion

28Directive 2019/1158 may not be implemented in the UK, but the UK work/life balance legislation has been developing in the similar direction and, in many respects, the current UK regulations are either similar to the provisions of the Directive or even contain more generous entitlements. At the same time, in some respects working parents would benefit from alignment with Directive 2019/1158, especially with regard to the right to paternity pay and the new right to carers’ leave.

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Notes

1 The existing EU-derived provisions of employment law have been retained, but may be changed in the future, according to the UK legislative procedure (EU Withdrawal Act 2018, Art. 2(1) and Art. 7). See also J. Kenner, « Brexit and Labour Standards at the time of COVID-19 - To Converge or to Diverge, that is the Question », Eulawanalysis, 19 June 2020: http://eulawanalysis.blogspot.com/2020/06/brexit-and-labour-standards-at-time-of.html

2 Directive (EU) 2019/1158 of the European Parliament and of the Council of 2o June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU [2019] OJ L188/79.

3 Directive 2019/1158 Art. 20(1).

4 Directive 2019/1158 Art. 20(2).

5 The EU and UK Withdrawal Agreement [2020] OJ L29/7, Art. 127.

6 Council Resolution of 29 June 2000 on balanced participation of women and men in family and working life. OJ [2000] C218; Art. 7 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions as amended by Directive 2002/ 73/EC of the European Parliament and of the Council (OJ L 269/15).

7 Directive 2019/1158 Art. 4.

8 The Paternity and Adoption Leave Regulations 2002 (SI 2002 no. 2788), reg. 5.

9 Directive 2019/1158 Art. 4(1)

10 Directive 2019/1158 Art. 8(2).

11 Women and Equalities Committee, House of Commons: First Report of Session 2017-2019, Fathers and the workplace (WESC, 2018) 16 : https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/358/358.pdf

12 EHRC, Women’s rights and gender equality in 2018: update report (Equality and Human Rights Commission, 2018). Available at: www.equalityhumanrights.com/en/womens-rights-and-gender-equality-2018-update-report

13 Working Families, « Increase the Joy: Improving Shared Parental Leave » (Working Families, 2018) : www.workingfamilies.org.uk/wp-content/uploads/2018/05/WF-Briefing-2018-Increase-the-Joy-ways-to-improve-Shared-Parental-Leave-FINAL.pdf

14 « Good Work Plan: Proposals to support families », Consultation, July 2019: https://beisgovuk.citizenspace.com/lm/9e55319a/supporting_documents/goodworkfamilysupportconsultation.pdf

15 J. Lewis and M. Campbell, « UK Work/Family Balance Policies and gender Equality 1997-2005 » (2007) 14 Social Policies: International Studies in Gender, State and Society, 4, 14; G. Games, The Legal Regulation of Pregnancy and Parenting in the Labour Market (Routledge, 2009), 43.

16 Equality and Human Rights Commission: Working Better: Fathers, family and work - contemporary perspective : http://www.equalityhumanrights.com/uploaded_files/research/41_wb_fathers_family_and_work.pdf

17 Promoting Uptake of Parental leave and Paternity Leave Among Fathers in the European Union (Eurofoundation, Publications Office of the European Union, 2015).

18 Directive 2019/1158 Art. 4(2).

19 Directive 2019/1158 Art.8(2)

20 Fathers and the Workplace, 16.

21 Directive 2019/1158 Art. 2.

22 Fathers and the Workplace, 16, n11.

23 Case C-393/10 O’Brien v Ministry of Justice ECLI:EU:C:2012:110, para. 44. See also N. Kountouris, « The Concept of ‘Worker’ in European Labour Law: fragmentation, autonomy and scope » 47/2 Industrial Law Journal, 2018, 192-225.

24 The Maternity and Parental Leave Regulations 1999. SI 1999 no. 3312, regs.13-15.

25 Directive 2019/1158 Art. 5(1).

26 Directive 2019/1158 Art. 5(4).

27 Directive 2019/1158 Art. 5(2).

28 South Central Trains v Rodway [2005] ICR 1162.

29 Directive 2019/1158 Art. 8(3).

30 « Good Work Plan: Proposals to support families’ consultation », July 2019, 28 : https://beisgovuk.citizenspace.com/lm/9e55319a/supporting_documents/goodworkfamilysupportconsultation.pdf

31 Ibid., 27.

32 The right to take 26 weeks of additional paternity leave was introduced in 2011 by the Work and Families Act 2006 and replaced with Shared Parental Leave in 2015.

33 J. Atkinson, « Shared Parental Leave in the UK: can it advance gender equality by changing fathers into co-parents? », 13(3) International Journal of Law in Context, 2017, 356, 362.

34 Case 337/10 Neidel v Stadt Frankfurt am Main ECLI:EU:C:2012:263.

35 Shared Parental Leave Regulations 2014. SI No 3050; The Statutory Shared Parental Pay (General) Regulations 2014, SI No 3051.

36 See E. Caracciolo di Torella, « New Labour, New Dads - The Impact of Family - Friendly Legislation on Fathers », Industrial Law Journal, 2007, 36/3, 318, 320; G. James, « The Work and Families Act 2006: Legislation to Improve Choice and Flexibility » Industrial Law Journal, 2006, 35(3), 272.

37 H. Birkett and S. Forbes, « Shared Parental Leave: why is take-up so low and what can be done? University of Birmingham Press Release », August 2019: https://www.birmingham.ac.uk/news/latest/2019/08/university-of-birmingham-research-shows-take-up-of-shared-parental-leave-is-increasing.aspx

38 H. Birkett and S. Forbes, « Where is Dad? Exploring the low take-up of inclusive parenting policies in the UK» , Policy Studies, 2019, 40/2, 205, 210-211.

39 O. Golynker , « Family-friendly reform of employment law in the UK: an overstretched flexibility », Journal of Social Welfare Law and Family Law, 2015, 37(3) ,378; G. James, « Family-friendly Employment Laws (Re)assessed: the potential of care ethics », Industrial Law Journal, 2016, 45/4, 477; A. Koslowski and G. Kadar-Satat, « Fathers at Work: explaining the gaps between entitlement to leave policies and uptake », Community, Work and Family, 2019, 22/2, 129-145.

40 H. Birkett et S. Forbes, op. cit., vol. 27, no. 38.

41 Joined case Ali v Capita Customer Management Ltd and Hextall v Chief Constable of Leicestershire Police [2019] EWCA Civ 900, 24 May 2019. [66]-[72], [125].

42 The unfortunate consequence of the earlier ruling of a Scottish court of first instance in Snell v Network Rail (ETS/1400178/2016)

43 Ali and Hextall [66]-[67].

44 J. Lewis, Work-Family Balance, Gender and Policy (Edward Elgar, 2009), 19.

45 A proposal to review the scheme of all work/life balance rights of parents has been made in « Good Work Plan: Proposals to support families » consultation, no. 30.

46 Directive 2019/1158, art 3(1): use of remote working arrangements, flexible working schedules, or reduced working hours and see also Preamble (34).

47 ERA 1996, s 80F(1)(a).

48 See for example of flexible working, the government website : https://www.gov.uk/flexible-working/types-of-flexible-working

49 See Department of Trade Industry, « Work and Parents: Competitiveness and Choice » (May 2001). For commentary on this measure, see for example J. Lewis and M. Campbell, « UK Work/Family Balance Policies and Gender Equality 1997-2005 », Social Politics: International Studies, 2007, 14 (1), in Gender 4.

50 Employment Act 2002, explanatory notes : http://www.legislation.gov.uk/ukpga/2002/22/notes/division/3/4/1/6

51 ERA 1996, s 80F.

52 Work and Families Act 2006.

53 See G. James, « The Work and Families Act 2006: Legislation to Improve Choice and Flexibility », Industrial Law Journal, 2006, 35(3), 272 at 275.

54 The Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations 2009, SI 2009/595.

55 See for example G. James (2006), 278.

56 Children and Families Act 2014.

57 See for example O. Golynker, « Family-friendly reform of employment law in the UK: an overstretched flexibility », Journal of Social Welfare Law and Family Law, 2015, 37(3), 378, 389.

58 Directive 2019/1158, art 9(4).

59 ERA 1996, s 80G.

60 The full list is found in s 80G(b): the burden of additional costs, detrimental effect on ability to meet customer demand, inability to re-organise work among existing staff, inability to recruit additional staff, detrimental impact on quality, detrimental impact on performance, insufficiency of work during the periods the employee proposes to work, planned structural changes.

61 BA v Starmer [2005] IRLR 862 (EAT) where British Airways refused the request of a female pilot to work 50% of a full-time contract for caring reasons. This was deemed indirect sex discrimination.

62 ACAS, Code of Practice on handling in a reasonable manner requests to work flexibly (2014).

63 Directive 2019/1158, art 9(2).

64 ERA 1996, s 47.

65 ERA 1996, s 104C.

66 Directive 2019/1158, art 12 and 14 and Preamble (41).

67 Directive 2019/1158, art 9(1): « The duration of such flexible working arrangements may be subject to a reasonable limitation ».

68 Directive 2019/1158, art 9(3).

69 O. Golynker, (2015) 387.

70 Directive 2019/1158, Preamble (35).

71 Queens’ Speech, 19th December 2019: « Measures will be brought forward to encourage flexible working, to introduce the entitlement to leave for unpaid carers » : https://www.gov.uk/government/speeches/queens-speech-december-2019

72 The Queens’ Speech - Briefing Background notes p. 43-44: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/853886/Queen_s_Speech_December_2019_-_background_briefing_notes.pdf

73 The Independent, « Employers should now always offer working from home as option, Matt Hancock says », 10 July 2020.

74 CIPD, Flexible Working in the UK, June 2019, 3-4.

75 CIPD, MegaTrends – Flexible Working, January 2019, 15.

76 Hardy and Hansons Plc v Lax [2005] EWCA Civ 846.

77 Unreported Employment Tribunal case. See BBC News, Father winds discrimination case : http://news.bbc.co.uk/1/hi/scotland/1666173.stm

78 Directive 2019/1158, Preamble (27).

79 G. James and E. Spruce, « Workers with Elderly Dependants: Employment Law’s Response to the Latest Care-giving Conundrum », Legal Studies, 2015, 35, 463.

80 The latest figures available reveal that between 2001 and 2011, the number of cares in the Uk had increased by 11% - Carers UK, Facts about carers’, Policy briefing August 2019.

81 ERA 1996, s 57A and 57B.

82 Case C-303/06, Coleman v Attridge Law [1998] ECR I-00621– where a legal secretary had eventually been dismissed because of her absence from work. This was because she cared for her disabled son.

83 Directive 2019/1158, art 3(1)(d).

84 Directive 2019/1158, art 3(1)(e).

85 Directive 2019/1158, Preamble (32).

86 Directive 2019/1158, art 6.

87 The Queens’ Speech, op. cit.: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/853886/Queen_s_Speech_December_2019_-_background_briefing_notes.pdf

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Oxana Golynker et Pascale Lorber, « Directive 2019/1158 on work-life balance for parents and carers in the UK: the Brexit effect »Revue de droit comparé du travail et de la sécurité sociale, 4 | 2020, 108-119.

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Oxana Golynker et Pascale Lorber, « Directive 2019/1158 on work-life balance for parents and carers in the UK: the Brexit effect »Revue de droit comparé du travail et de la sécurité sociale [En ligne], 4 | 2020, mis en ligne le 01 décembre 2021, consulté le 23 mai 2024. URL : http://journals.openedition.org/rdctss/833 ; DOI : https://doi.org/10.4000/rdctss.833

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Auteurs

Oxana Golynker

Lecturer, University of Leicester.
Research subjects: Work Life Balance, Social Security and the EU, EU Citizenship.

Publications :
~ O. Golynker, « EU coordination of social security from the point of view of EU integration theory », European Journal of Social Security, 2020, vol. 22(2), p. 110.
~ O. Golynker, « Family-Friendly Reform of Employment Law in the UK : an overstretched flexibility », Journal of Social Welfare and Family Law, 2015, vol. 37/3, p. 378.

Articles du même auteur

Pascale Lorber

Professor, University of Leicester.
Research subjects: Collective Representation and Voices at Work, Equality Law.

Publications :
~ P. Lorber and T. Jaspers, « Workers’ Participation in Business Matters », in T. Jaspers, F. Penning and S. Peters, European Labour Law, Intersentia, 2019.
~ P. Lorber, « Directive 2002/14/EC establishing a general framework for informing and consulting employees in the European Community », in E. Ales, M. Bell, O. Deinert and S. Robin-Olivier (ed.), International and European Labour Law, Nomos, Hart publishing, 2018.

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