Knowledge

Amidst the working from home revolution caused by Covid-19, there is another significant change on the horizon: family friendly legislation. Amendment No. 11 (the "Amendment") to the Employment (Jersey) Law 2003 (the "Law") was approved by the States Chamber on 24 October 2019 and is scheduled to come into effect over the summer. The Amendment provides employees with a range of new rights, and attempts to make raising a family as equal as possible for parents, whilst placing new obligations upon employers.

Since 2015, the Law has provided some protections, such as maternity leave, a limited period of paternity leave and time off work for ante-natal care. Under the Discrimination (Jersey) Law 2013, pregnancy and maternity are protected characteristics, preventing employers from treating employees differently should they be pregnant or have children. At present there is no such protection for fathers.

From the date of introduction, employers must ensure they are compliant with the following changes. A good starting point is by reviewing, and where necessary, amending, employment contracts, handbooks and policies, in order to ensure they comply with the law.

What is changing?
The Law is changing in order to introduce new protections, as well as recognise the evolving nature of families. For the purposes of the Law, new parents will include the following:

• mother of the child;
• father of the child;
• partner of the child's mother (if expected to have responsibility for the child's upbringing);
• adoptive parent(s); and
• intended parent(s) in a surrogacy arrangement.

Foster parents and those undergoing fertility treatment will not be covered by the changes.

Parental leave
Current position
Under the Law, mothers are entitled to 26 weeks maternity leave with six of these being paid. All other parents are entitled to 26 weeks parental leave, however, only two weeks are paid. Parental leave may be taken in up to three blocks within a year of the child's birth. There is no necessary qualifying period.

New position
All parents will be entitled to 52 weeks parental leave, with six weeks on 100% pay.

• For mothers, these six weeks must be paid immediately after the birth.
• For partners, there is no prescribed period for when these six weeks must be paid.

Both parents will be able to claim a new Parental Allowance benefit. There is no necessary qualifying period. Where employees are being paid their salary and receiving this benefit, employers are entitled to deduct the benefit amount.

The 52 weeks parental leave can be taken as a whole, or split into three blocks of at least two weeks, during the two year period following the child's birth or adoption. This applies to all parents.

Birth parent employees must notify their employers 15 weeks before they intend to take their parental leave. At the same time, employees must also indicate when they intend to take their blocks of parental leave. These employees will be entitled to commence parental leave up to 11 weeks before the child's due date. Where the child is born earlier than the date indicated, parental leave will commence the day after the birth.

Adoptive parent employees must notify their employers within seven days of being notified that they have been matched with a child for adoption. These employees must also indicate how they intend to take their parental leave throughout the two year period.

If parents require any changes to the agreed parental leave, they must make this request in writing 42 days prior to the intended change taking effect. The employer must ensure they make reasonable adjustments, in order to accommodate any change requests within operational constraints.

Where parents return to work for 'keeping in touch days', this will not end parental leave nor extend the period of leave. Employees should be paid or given time off in lieu, depending on employer preference.

Parental leave is not transferable to a new employer.

Necessary employer action
Employers must review and amend all employment contracts, handbooks and policies, in order to incorporate this change. Where employers wish to set reasonable parameters, such as, for example, not allowing employees to bank annual leave for use when their child is born, this must be clearly stipulated.

For business continuity purposes, employers should draft specific procedures for managing absence due to parental leave. Employers should ensure these changes are communicated to employees and should revise budgets to incorporate this extra cost.

In particular, employers should ensure that all blocks of leave are taken within the prescribed two year period. Employers must also ensure decision deadlines are met (i.e. making a decision within 42 days where requests are made to change parental leave), in order to ensure that employees are able to take their leave during the parental leave period. Failure to do so could result in discrimination claims at the Jersey Employment and Discrimination Tribunal.

Antenatal appointments
Current position
Mothers, one adoptive parent and one surrogate parent are entitled to paid time off for an unlimited number of appointments.

Fathers, partners and the other adoptive or surrogate parent are entitled to time off for an unlimited number of appointments and up to ten hours are paid.

New position
Mothers will still be entitled to paid time off for an unlimited number of appointments.

All other parents, including both adoptive and surrogate parents will now be entitled to time off for an unlimited number of appointments, with the first ten hours being paid. There is no obligation to pay any remaining time off.

Necessary employer action
Review and amend all employment contracts, handbooks and policies so that they reflect this change. Drafting specific procedures in order for employees to notify employers may assist with organising cover.

What is new?
Breastfeeding
New position
Mothers will be given the right to request a temporary variation to employment terms and conditions for reasonable breaks from work, in order to breastfeed and express milk. The Amendment states that these breaks must be paid for the first 52 weeks after the child's birth. Where an employee intends to take advantage of this right, they should stipulate when they plan to end breastfeeding, in order to assist their employers with business planning.

A meeting must be held between the employer and employee within seven days from the application being made.

• The employer has 14 days from the date the application is made to decide whether to grant this or not.
• Where an application is declined, the employer must state the reason why and allow the right of appeal. If the employee appeals:
  • the appeal must be lodged within seven days of the application being rejected;
  • the appeal meeting must be held within seven days of the appeal being made; and
  • the decision must be given within seven days of the appeal meeting being held.
• The employee has the right to be represented by a work colleague or a union representative.

Employers will also be placed under a duty to take reasonable steps to provide breastfeeding facilities for new mothers.

Necessary employer action
Bedell Cristin recommends the introduction of a breastfeeding policy, should one not be in place, in order to assist staff making decisions on this point. In particular, this should detail how to request a variation of terms to breastfeed, the process and how to appeal.

Employers will have to take reasonable steps and consider how they can introduce appropriate breastfeeding facilities. These will have to be private and should include fridge space or other adequate storage, in order to store expressed milk.

When considering whether it will be reasonable to provide breastfeeding facilities, some considerations to take into account include:

• the nature of the employer, as well as its size;
• the nature of the business premises;
• financial and administrative resources available; and

whether such steps, should they be taken, would be effective and practical in providing suitable facilities.

Health and safety
New position
Any employee who is pregnant, breastfeeding or has recently given birth will be entitled to paid leave where a health and safety risk assessment concludes that they are unable to carry out their duties and it is not possible to make the necessary adjustments or accommodate the employee in alternative duties. The employee will not be entitled to paid leave where they unreasonably refuse suitable alternative employment with the employer.

Necessary employer action
Accommodate this change in any contracts of employment, handbooks and policies. Employers, irrespective of whether they have pregnant employees or not should consider this aspect long-term, and seek suitable alternative roles for these employees if necessary.

Gender neutral parental benefit
From early 2021, the current Maternity Allowance benefit will be replaced by a Parental Allowance, which will be claimable by both parents. Given the current difficulties businesses are facing due to Covid-19, the Social Security Minister has drawn up an interim scheme to shield employers from further costs at this unprecedented time.

Interim Scheme – 28 June 2020 until early 2021

• Mother claims the weekly Maternity Allowance from week 1 (after birth) to week 18;
• Employer pays weeks 1 to 6, with the value of the Maternity Allowance deducted from her pay during that time.
• Other parent is paid for weeks 1 to 6 and the employer may claim back the Maternity Allowance amount from the Government. 

Finalised Scheme – from early 2021

• Between weeks 1 and 6, each parent claims the Parental Allowance from the Government. They must also be paid by their employers, with the value of Parental Allowance deducted from the amount paid.
• A further 20 weeks of the Parental Allowance benefit may be claimed by the parents. This may be divided however they wish.

False statement offence
The Amendment creates a new offence of making a false statement in connection with parental leave. Previously this would have been dealt with by the employer.

Employer considerations
Employers must ensure they plan ahead and make any necessary, reasonable changes to working plans, practices and budgets. The lengthier parental leave will mean employers will have to plan at least two to three years ahead so that requirements under the Amendment are reasonably accommodated. In addition, employers must be prepared for future changes. The Law is due for review in two years' time.

Existing rights under other laws will continue to apply. These include:

Right to return to work
All employees are entitled to return to the same job after parental leave, on terms and conditions not less favourable than those which would have been applied, had they not been absent. If the job no longer exists, they should be placed in a suitable equivalent role.

Discrimination
Protection against discrimination on the grounds of gender, pregnancy and maternity will remain in force under the Discrimination (Jersey) Law 2013.

Given that some new procedures will be introduced (i.e. the process to varying employment terms for breastfeeding breaks), employers must ensure they follow a fair process, in order to not face discrimination or constructive dismissal claims.

Where employers provide an enhanced maternity payment (i.e. above the statutory amount), they may consider extending such payments to other partners, as not doing so could be construed as a discriminatory act. Although not stipulated in the law, this could be an important financial and reputational consideration.

Flexible working
Under the Law, all employees are entitled to make one request for flexible working in a 12 month period, regardless of length of service.

Complaints
Protection against detriment and dismissal for reasons relating to family friendly rights, discrimination and other related rights.

For a seamless implementation of the new changes, senior staff and line managers may benefit from training. This could be beneficial for both employers and employees as both will understand the boundaries of their new rights and obligations.

Conclusions
This legislation will help bring Jersey's parental rights up to modern standards and make it a supportive place to raise a family, allowing both parents to contribute equally to their child's early years. Bedell Cristin recommends that employers undertake an urgent review of all employment contracts, handbooks and policies and, as necessary, make any additions and amendments. Employers should also communicate these changes as soon as possible, as well as encourage expectant employees to be as open as possible by discussing plans well in advance.

Contact the Bedell Cristin employment team for all your employment needs.