Guest comment: Want to work flexibly? The Government's on your side

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Elizabeth Lang, employment lawyer at international law firm Bird & Bird, says banks will need to be flexible if they're to cope with legislation giving new rights to parents and carers.

Since 2003, parents of young children have had the right to request flexible working - although in practice most requests come from mothers. Recent surveys show that 47% of new mothers now work flexibly. Our experience shows that in investment banks it is considerably less, particularly in more senior, key roles.

Flexible rights for carers

This right will be dramatically extended as from 1 April 2007, when it will become available to 'carers'. Carers are defined as people who care for their spouse or partner, or for a near relative or someone who lives at the same address. The Government has adopted a broad definition of 'near relative' which includes in-laws, uncles and aunts and step-relatives. Being able to work flexibly around care for an elderly parent, for example, is something that may be very attractive to many employees and employers are expecting a significant number of requests - our investment banking clients included.

Penalties for employers

Although employees will have the right to make the request, there is no guarantee they will succeed. Employers are obliged to consider the request according to a specific procedure. But they can turn it down on certain defined business grounds, for example, additional cost, or an adverse effect on quality or the ability to meet customer demand.

The penalties for refusing such requests are not onerous. However, employees who have their requests slighted may be able to bring broader employment-related claims as a result. For example, if an employer has acted unreasonably in turning down the request, or has treated the employee badly in the process, an employee may argue that this breaches the implied term of trust and confidence (a very real legal concept) entitling him (or her) to claim constructive dismissal.

Maternity leave goes paternal

At the same time, the Government is going out of its way to increase the rights of new parents. From April 2007, all women expecting babies will be allowed to take up to one year of maternity leave - at the same time, the period of statutory maternity pay (SMP) will increase from six to nine months.

A further radical change will be the right for mothers to 'pass on' up to six months of their maternity leave to the father of a new baby. The six-month leave period will be paid at the same rate as SMP, and fathers will have similar protection to women on maternity leave, including the right to return to the same job. The basic provisions have been confirmed after a consultation period, and it is thought that legislation will come into force within the current parliament.

Flexible working may not be about to become the norm, but the new initiatives mean it is likely to become more common.