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Working time and child care

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The Working Time Regulations 1998 and the Working Time Directive give every worker the right to paid holidays, breaks and the right to a weekend. Following international law, every worker must have at least 28 days, or four full weeks in paid holidays each year (including public holidays). There is no qualifying period for this, or any other working time right, because the law seeks to ensure both a balance between work and life, and that people have enough rest and leisure to promote better physical and psychological health and safety. Because the purpose is for workers to have the genuine freedom to rest, employers may not give a worker "rolled up holiday pay", for instance an additional 12.5% in a wage bill, in lieu of taking actual holidays. However, if the worker has not used his or her holidays before the job terminates, the employer must give an additional payment for the unused holiday entitlement.

Where a person works at night, he or she may only do 8 hours in any 24-hour period on average, or simply 8 hours at most if the work is classified as "hazardous". Moreover, every worker must receive at least 11 consecutive hours of rest in a 24-hour period, and in every day workers must have at least a 20-minute break in any 6 hour period. The most controversial provisions in the working time laws concerns the right to a maximum working week. The labour movement has always bargained for a shorter working week as it increased economic productivity: the current maximum is 48 hours, averaged over 17 weeks, but it does not apply to the self-employed or people who can set their own hours of work. In Pfeiffer v Deutsches Rotes Kreuz the Court of Justice said the rules aim to protect workers who possess less bargaining power and autonomy over the way they do their jobs. Nevertheless, the UK government negotiated to let workers "opt out" of the 48-hour maximum by individually signing an opt out form. Theoretically and legally, a worker may always change his or her mind after having opted out, and has a right to sue the employer for suffering any detriment if they so choose. "On call" time where people must be ready to work is working time. The European Court of Justice's decision in Landeshauptstadt Kiel v Jaegar that junior doctors' on call time was working time led a number of countries to exercise the same "opt out" derogation as the UK, but limited to medical practice. The Health and Safety Executive is the UK body charged with enforcing the working time laws, but it has taken a "light touch" approach to enforcement.

Possibly the most important time off during working life will be to care for newly born or adopted children. However, unlike paid holidays or breaks that are available for "workers", child care rights are restricted to "employees". They are also less favourable for male parents, which exacerbates the gender pay gap as women take more time out of their careers than men. Going beyond the minimum in the Pregnant Workers Directive, the Employment Rights Act 1996 section 71 to 73 and the Maternity and Parental Leave etc. Regulations 1999 guarantee maternity leave for 52 weeks in total, but in four steps, paid and unpaid. First, women must take two weeks compulsory leave at the time of child birth. Second, and covering the compulsory leave, there is a right to 6 weeks' leave paid at 90% of ordinary earnings. Third, there is a right to 33 weeks' leave at the statutory rate, or 90% of ordinary earnings if this is lower, which was £138.18 per week in 2014. The government reimburses employers for the costs according to the employer's size and national insurance contributions. Fourth, the mother may take additional, but unpaid maternity leave for another 13 weeks. A contract of employment can always be, and if collectively bargained usually is, more generous. There is no qualifying period for the right to unpaid leave, but the mother must have worked for 26 weeks for the right to paid leave. The mother must also tell the employer 15 weeks before the date of the expected birth, in writing if the employer requests it. Employees may not suffer any professional detriment or dismissal while they are absent, and should be able to return to the same job after 26 weeks, or another suitable job after 52 weeks. If parents adopt, then the rights to leave follow maternity rules for one primary carer. However, for fathers ordinarily, the position is less generous. The Paternity and Adoption Leave Regulations 2002 entitle a father to 2 weeks leave, at the statutory rate of pay. Both parents may also take "parental leave". This means that, until a child turns 5, or a disabled child turns 18, parents can take up to 13 weeks unpaid leave. Unless there is another collective agreement in place, employees should give 21 days' notice, no more than 4 weeks in a year, at least 1 week at a time, and the employer can postpone the leave for 6 months if business would be unduly disrupted. Otherwise, employees have a right to suffer no detriment, nor be dismissed, and have the right to their previous jobs back. To redress the imbalance between women and men bearing children, the Additional Paternity Leave Regulations 2010 made it possible for the woman to transfer up to 26 weeks of her maternity leave entitlements to her partner. This has not stopped the gender pay gap.

In further specific situations, there are a jumble of other rights to leave spread across the Employment Rights Act 1996 sections 55 to 80I. "Emergency leave" is, under the Employment Rights Act 1996 section 57A, available for employees to deal with birth or a child's issues at school, as well as other emergencies such as dependents' illness or death, so long as the employee informs the employer as soon as reasonably practicable. In Qua v John Ford Morrison Solicitors, Cox J emphasised that there is no requirement to deliver daily updates. After Employment Act 2002, employees gained the right to request flexible working patterns for the purpose of caring for a child under the age of 6, or a disabled child under age 18. The right to make the request is contained in Employment Rights Act 1996 section 80F, and despite the fact that employers may decline the request, employers grant requests in 80% of cases. An employee must make the request in writing, the employer must reply in writing, and can only decline the request on the basis of a correct fact assessment, and within 8 grounds listed in section 80G, which generally concern business and organisational necessity. In Commotion Ltd v Rutty a toy warehouse assistant was refused a reduction to part-time work because, according to the manager, everyone needed to work full-time to maintain "team spirit". The Employment Appeal Tribunal ruled that because "team spirit" was not one of the legitimate grounds for refusal, Rutty should get compensation, which is set at a maximum of 8 weeks' pay. Finally, the Employment Rights Act 1996 sections 63D-I give employees (and agency workers are expressly included) the right to request the right to get time off for training.


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