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Generational shift – Grandparents to be allowed to support their families for free

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It started as a proposal in Labour’s pre-election Women’s Manifesto, but has been picked up by the prime minister in answer to questions in the House “because the right to request flexible working has been championed by this government”.

It is, however, important to understand that what is proposed in relation to grandparents and childcare is not part of either the right to request flexible working (which results in a permanent variation to your contract of employment to allow you to work more flexibly and still be paid), nor is it part of the new Shared Parental Leave regime, which allows a mother to curtail her own maternity leave and pay so as to share/transfer it to her spouse/partner. Rather, it relates to “ordinary” or “original” parental leave which is unpaid.

Read more about Shared Parental Leave:

The proposal is that working grandparents could be given the right to participate in the existing scheme that allows those who qualify to take 18 weeks’ unpaid, “parental leave” in order to assist with childcare.

The barrier, to date, in relation to ordinary parental leave, has been the fact that this leave is unpaid. It may be that grandparents consider that they have more financial security/flexibility to take time off work, unpaid, to help with the care of their grandchildren. But equally, they may not.

As well as the financial disincentive, there are legal hurdles to overcome:

  • Currently, in order to qualify for the 18 weeks’ leave, you have to have “parental responsibility” and the current definition of this would not include grandparents (unless they already have day-to-day responsibility for the care of their grandchildren)
  • Parents are granted eighteen weeks per child, whereas, as a grandparent, you could have a number of children who go on to have an even larger number of grandchildren, each of whom would entitle a grandparent to 18 weeks off (up until the grandchild is 18 years old). How will employers cope with this level of potential absence? Will the current rules have to be amended?

For employers, the concept of sharing entitlements to leave between couples who have parental (or other caring) responsibilities, is an administrative problem – scheduling time off, finding possible replacements while people are away, potentially having to communicate and/or negotiate with the employer of the other parent (in relation to shared parental leave and pay), dealing with statutory shared leave entitlements and holidays.

There is also the issue of understanding which type of shared leave a particular employee may be seeking – a request for flexible working, which an employer can refuse on certain business grounds; a request by parents/adopters in relation to shared parental leave and pay, which cannot be refused; a request by a male partner for paternity leave; a request by those with “parental responsibility” for ordinary parental leave which is unpaid, or a combination of some of these entitlements – and now the group of employees/workers who may be capable of applying for such leave/shared leave, is to be expanded to include grandparents.

At a time when both life expectancy and the ability to work is being extended, it is conceivable that one employer may have three or four generations of the same family within its work force. What is good for grandparents, must be equally good for great-grandparents. Accommodating statutory requests for what may be complex patterns of work seems likely to become a mini-industry for both the employer and the employee (as currently there is no one form or one/unified timetable that can be used for the different types of leave/shared leave).

Finally, it is worth remembering that even though ordinary parental leave that is proposed for grandparents, is unpaid, the consequences of refusing a grandparent ordinary parental leave, may give rise to an expensive unfair dismissal and/or discrimination claim. 

Richard Isham is a partner in employment law at Wedlake Bell.

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