Maternity and Paternity Leave – An International Comparison

Posted in : Webinar Recordings on 23 September 2021
Sherisa Rajah
Elements Global Services
Issues covered: Maternity and Paternity Leave

During this international employment law webinar with Elements Global Services, Sherisa Rajah (Vice President, Employment Law & Compliance at Elements Global Services) and Scott Alexander (Head of Learning and Development at Legal Island) will briefly outline relevant UK and Irish rights and reflect on how these compare with other countries, such as New Zealand, USA, South Africa, and more.

What can employers (and policy makers) on these islands learn about other options that might be usefully adopted here? At a time of massive skill shortages do we need improved family-friendly rights and flexibility to recruit and retain a truly diverse and inclusive workforce?

Supporting links can be found on: https://www.legal-island.ie/globalassets/pdf-documents/maternity-paternity-rights-across-world.pdf

Transcript

Scott: Good morning, everybody. My name is Scott Alexander. Welcome to the latest webinar that we're doing with Elements GS. This one is going to be on Maternity and Paternity Leave - An International Comparison. We're looking at employment lessons from around the world.

Our guest today is, as ever, Sherisa Rajah. There she is. She's the International Employment Lawyer and Vice President, indeed, of Global Employment Law and Compliance at Elements Global Services and Expandopedia. Do you want to explain what those organisations are a little, Sherisa, and just say hello to everybody?

Sherisa: Perfect. Hi, everyone. Thanks for joining, and I look forward to debating the content with you this morning. And thank you, Scott, for having me again.

At Elements Global Services, we are an HR global expansion partner for our clients. We support global expansion in over 135 countries where you don't have an entity set up. We will support the cradle-to-grave direct employment of employees in these countries, handling everything from statutory compliance to negotiated exits or local terminations. That's on the EOR side of the business.

In addition to that, we have our own platform called Expandopedia. Expandopedia is an HR tool that covers employment laws, best practices, HR laws, payrolls in about 163 countries right now. You can also buy and download employment contracts, mutual termination agreements, dismissal documents in all of these active countries.

Scott: That's brilliant. Thank you very much. So if you have any questions today, send them in using the little chat function there or the questions. I'll pull them out. Put them in the question box that you have on your right-hand side.

Just before we do that, you can see that we have Employment Law Annual Review is coming up in November, 10 and 11 November for Northern Ireland, and the 24th and 25th there.

I've been asked to read a couple of things out. Let me hear what they are because I write the programme, but I haven't written this. So it says Legal-Island's flagship Annual Review of Employment Law conferences with our expert speakers, detailed notes, templates, and precedents will cover all of the important developments that HR professionals across the island of Ireland need to know and understand. The two-day online conferences take place on 10 and 11 November in Northern Ireland, and then 24 and 25 November in Ireland. Plus, attendees will have access to all the notes and recordings to refer to back and will have exclusive access to bonus webinars with keynote speakers.

Because I've just written the programme for it too, you'll also get a free place at the International HR Day on 27 January. So we've got speakers coming up from New Zealand.

Now, Sherisa, you're from South Africa, but you're based in England at the moment. I'm Scottish, obviously, but I'm based in Ireland. So a very international flavour coming up with French speakers in Spain, and we've got Italians in Switzerland, and all kinds of things. You're going to enjoy it, folks. So if you're at the Annual Review, you'll enjoy the International HR Day.

Now, just before we kick-off, we're going to be looking at things today. You can see the agenda there. We're going to be looking at, I suppose, the family-friendly element. We're not going to just stick with maternity. We're going to look at the family and maternity issues. But rather than delve that deeply into the UK and Ireland, which is what we'd be expecting what we're looking at, I think that was a bit dull. So what we're going to look at more is discussing what employers and policymakers on these islands can learn from different approaches to family-related time off rights in other jurisdictions around the world. In asking that, do we need to improve family-friendly rights and flexibility to recruit and retain a truly diverse and inclusive workforce?

We'll be looking at issues such as contractual problems, perhaps, that we may come across and little hints and such like that may be advantageous to our listeners if you want to take them on board. So we'll also be looking at the pitfalls that might be if you decide to take on things outside statutory requirements.

So before we get into that . . . this is the first time we've tried it. Rolanda in the background is going to try and show a video. And we're going to look at this video, and then we'll come back and we'll have a discussion.

[video starts 00:04:44]

Narrator: The pay gap between men and women around the world looks a little different depending on how you measure it. In Poland, women earn 91 cents for every dollar a man does. In Israel, it's 81 cents. In South Korea, women make just 65 cents on the dollar.

Valentine: We know that just freeing the potential of women, that is the fastest multiplier that we have in terms of our growth. That is such an accelerator in eradicating poverty.

Hilary: When you go to the store, you don't get a woman's discount. You have to pay the same as everybody else. So that comes out of your family income.

Narrator: When someone mentions the pay gap, you often hear another phrase as well.

Elizabeth: Equal pay . . .

Barbra: . . . for equal work.

Barack: Equal pay for . . .

Woman: . . . equal work.

Dick: Equal pay . . .

Jackie: . . . for equal work.

Narrator: That makes it sound like women are paid less for doing the same job as men, which means women are paid less just for being women. There's a word for that: discrimination. But a huge body of research from many countries shows that overt pay discrimination only potentially explains a small part of the gender pay gap.

Veronique: It's a real number, but it really actually tells you almost nothing about the real disparity between men and women.

Greta: Women aren't looking for a leg up. They're looking for an equal opportunity and they're looking for equal pay. Big difference.

Katrín: If you want to change the culture, you can't just sit down and wait. You have to do something about it.

Narrator: So, if it's not all about discrimination, why are women around the world paid so much less than men?

[video ends 00:06:27]

Scott: There we go. "Why are women around the world earning less than men?" is what we would like to end there. So that's a Netflix thing and we stole a little bit of their ad there.

So, Sherisa, we're looking at family-friendly rights, and I think it's fair to say that in our earlier discussions, our pre-event discussions, what we're really saying is that to a large extent, part of it anyway, is to do with the fact that the parental rights and the parental payment that come particularly for women mean that the pay is going to be lower. So this is a discrimination issue in effect because women have children and women take on the bulk of childcare.

So do you want to explain maybe some of the background and have a look at some of the options that there are throughout the world?

Sherisa: Yeah. So much to say. I think that the one jurisdiction that really stands out in terms of progressive parental laws is Sweden. In preparing for this, we looked at a number of jurisdictions, and the one that really, really stood out is the way in which Sweden has invested in the family unit as being the centre of all this development and all this innovation. If the family unit is right, it spurs on to positive effects, leading ultimately to inclusion and diversity so much so in the workplace.

Now, in Sweden, parental leave . . . So both men and women get 480 days paid leave at 80% salary. And of those days, 90 days of those are expressly reserved for the father.

But that's not all Sweden does. It's not just the leave grounds. It's the fact that on top of that, there's a monthly allowance paid to the parents for each child.

In addition to that, both parents have the right to reduce their working hours until the child turns 8 years old. And bearing in mind in Sweden we know that healthcare and education is free for children, right?

There are also other benefits that Sweden confers to young families. There's the parental benefit. That's the salary for this time off. There's the temporary parental benefit, so foster caring for kids, etc. There's the pregnancy cash benefit, so if you want to take leave as a pregnant woman in the days leading up to your delivery of the baby. And the final one is adoption leave.

Now, if you think of all of this, a man and a woman alike have equal opportunity to take leave and invest in their family, so much so that . . . And considering that it's at 80% salary, you can make a little bit of a compromise.

That Netflix documentary that we shared just now talks about the fact that we don't deny that there's a childcare penalty. When you have a family, when you start a family, something has to be compromised, right? But it needs to come from a space of being able to collectively bargain, to negotiate for good conditions when you exercise the judgement or the decision to start a family.

But you want to compare that by example to other jurisdictions where the grant is simply just the unpaid leave, the right of leave. And as a result of that, you turn to social security and you might get £100 a month maybe if you're lucky, or £100 a week if you're lucky in some jurisdictions. And I think that's a distinction as we look through these jurisdictions.

So Sweden was the most child-friendly jurisdiction, certainly rated the child-friendliest in the world. Following on that was the Netherlands. The Netherlands came in with pregnant employees being entitled to six weeks' leave before their due date, and then 10 weeks' leave after that. Now, in multiple births, the leave increases to 20 weeks. This passes to the father if the mother passes away as a consequence of childbirth.

This was what I find interesting: A partner can get one week's paid leave and a further five weeks' leave at 70% salary from social security.

Now, if you go back to that video we just played and you think about the fact that a father can essentially stay home and co-parent that newborn baby for six weeks with the mom, with the wife, that does have a huge impact on the wife's peace of mind and comfort to say, "Well, I'm doing this. I'm going back to work at the end of this. We can share this load".

But very often, because the mum is at home and the husband goes off to work after his three days' family responsibility leave, say, she ends up setting the routine. She ends up doing the nursing. She ends up figuring out what troubles baby and how to settle baby. As a result, the father can only do a limited amount in the evening when he gets home from work, if he's not working flexibly, etc. And so the mother starts the pattern of carrying the lion's share of childcare.

I think that's the lens. When we talk about changing perceptions, that's the lens from which we must look at what these jurisdictions are doing in building our employee value proposition in the UK or in Ireland, etc., and understanding what we need to add to what's on the table to give women the ability to go back to work and men the ability to equally participate in their newborn babies' lives.

It must also be terrible to carry the weight of, "Oh my goodness. I've got to go and earn a living. I've got an extra mouth to feed. I want to send my child to this amazing private school, or to Edinburgh University. I want to do these amazing things, but I have to work. And now my wife might not want to go back to work because it might not be possible for her".

Speaking of that . . . and I don't want to digress. In the UK, it was said that we have one of the most expensive childcare costs in all of Europe, and that an average of 35% of a family's income is spent on childcare.

It was said at Parliament . . . and I have to quote this because it really gave me goosebumps. Hard-core feminist here. "Childcare is as necessary for parents to get to work as the roads and rail network, so why do we not approach and fund it as a vital infrastructure that it clearly is?" Again, it's the context of the Grazia Petition, trying to look at reducing the cost of childcare to promote a more inclusive and diverse workplace.

But these are some of the things that we've been looking at. So we've got Sweden. We've got the Netherlands. In Denmark, all parents, regardless of gender, and whether they're the child's biological parent or not, are entitled to seven months leave. That's a long time.

The thought that came across my mind as an employment lawyer is saying, "Well, if someone takes that leave, how do I reasonably accommodate that?" And if you read the case law that goes with these grants, you find that you cannot deny that leave. It must be granted. So there's no right of first refusal. "You can't have that baby. I've decided you can't do that". You have to give the leave. So there's very little managerial prerogative on the employer on the timing of that leave.

There is an onus on the employee to file that application within a period of time. But let's say the employee doesn't. You're going to have to accommodate the request. And that's also something you want to start thinking about. If you want to start giving people seven months' leave, you need to accommodate that absence, how are you going to manage that, etc. But I thought Finland was incredibly progressive.

The last one I'll point out was that in Iceland . . . and this is why I wish I lived there when my babies were younger. Parents are entitled together to 12 months' post-childbirth leave. So each parent gets five months and then the remaining two months can be shared. I mean, can you imagine a very progressive family, one has the baby, goes back to work after she's healed, and says, "Here, Husband. See you in five months"? It could really work out for this inclusive, diverse workplace we're trying to promote here.

But those were just some of the jurisdictions that I thought were just so telling in how we're trying to build a cohesive functioning family unit to allow women the decision-making authority on whether they want to go back to work rather than feeling circumstances deny them that autonomy to make such an election.

Scott: Thank you very much. If you just joined us, folks, you're listening to Sherisa Rajah from Elements Global Services. She's been looking at the comparison of various rights, mainly, it should be said, from Northern Europe. So if you look at them, it's the Scandi countries that tend to be the best.

Obviously, mentioned mother and father. Same-sex families could exist as well, but one of them is going to be a mother or maybe adoptively. And all of those countries that you mentioned are progressive, which means that these are policy decisions made by governments, society.

And there's a question in there. "This is interesting, but isn't the tax regime wildly out of kilter with ours?" That is, but that's a policy decision. And whether you spend your money on pandemic payments . . . or at the moment, obviously, we've had the Labour Court recommendation in relation to health service workers in Ireland. If you spend your money there, then you may not have enough money to put into these family-friendly policies, which are, in your view, and mine too actually, almost perpetuating discrimination and unequal pay and a gender pay gap because you're forcing women to take on these childrearing roles and build in inequality and time away from work, as opposed to seeing it as something that should be a shared burden.

But again, I feel like that's my opinion. There are many people who have different opinions, and they may have different opinions in Ireland, and certainly the UK government as well. We'd have different opinions when it comes to those. So these are policy decisions.

Now, there won't be a few policymakers listening today, but assuming that they don't change the family-friendly entitlements and start paying, we're looking at, 80% the salary or 70% the salary, or assuming that they don't actually fund childcare properly so it's actually affordable . . . I mean, some of these it's a few pounds a week or a few euros a week that you're paying per child in order to have them in childcare. It's a totally different system where they take taxes and they supplement these things. Then it really becomes a kind of burden on employers.

If you're wanting to equalise and be inclusive, particularly in relation to women, I guess, if the policymakers don't change it, and we as taxpayers aren't willing to pay a lot more tax to fund these progressive changes that they have in Scandinavian countries in particular, and the Netherlands as well, it's really up to employers, isn't it?

So what are the kinds of things that they could look at and what are the kinds of issues that you think might come up if an employer said, "What we're going to do is we're going to try and retain women by offering them 70% or 80% of their salary. We're going to bring that in where they can share it with a partner, hopefully a partner that also works in the company"? Where would you see the issues being?

These are quite expensive if you're going to have something like that. Some companies do it. Some organisations would do it, and you would think that those employees would stick around. But what would that employer do if they didn't stick around and have paid out all this money and the woman leaves at the end of the pay?

So maybe discuss some of those issues and I'll have a wee look at some of the questions that are coming in from the audience. Just drop them into the question box there, folks. And like I said, if you had a problem . . . we've got a wee not here from Rolanda. If you have a problem with the video, we'll send it along afterwards with a link and you can watch it online yourself. Sherisa, on to you.

Sherisa: I mean, I think there's certainly a massive trend for companies to give young families a myriad of benefits in relation to raising their young families. And that starts right at the get-go with . . . We've been seeing a leave and paid time off for women or families to start fertility treatments, or doctors' appointments during the course of your pregnancy, etc. But it's become more and more progressive around giving people time off and paid time off on a sliding scale until they come back to the office.

Also allowing them to work flexibly. Working flexibly has certainly been a hot topic. It's become an even hotter topic now with people going back into the office, and lots of people have started or extended their families during the period. So a lot of our clients are saying, "We do need to revisit these leaves".

Now, I suppose that's where you want to see the development. I think that employment laws are slow to change. Laws are slow to change. We can say that. And in addition to that, they're reactive. I don't think logically employment laws can be proactive, because we don't know what's going to be an uptick in which sector, in which industry. People who are identified as vulnerable may be earning below a certain threshold. More senior C-suite kind of employees who can negotiate and bargain in their own capacity for better.

So taking all those things into consideration now, traditionally or historically, a woman would be given this leave, six months. It's celebrated. "Oh my gosh, progressive company, amazing". And then they'd sign a work-back agreement, a lock-in agreement for 12 months. Otherwise, the amount that you were paid is quantified as a debt and is recoverable by way of demand by your employer if you don't serve your full lock-in period.

But what does that say to the marketplace? What does that say to talent? This is part of the attractive offering that you offer in the war for talent that we're seeing right now, the war for the best and most dynamic individuals who will work beyond borders for you, blah, blah, blah.

The most common grant that we're seeing is, yes, the paid leave definitely, but we're also seeing the ability to encourage people to come back to the workplace. And it's not just, "Hey, I'll give you the time off and then you owe me". The "you owe me" has stood. It's a commercial necessity. If you think that you can do it without an acknowledgement of debt, an AOD, then we celebrate you. But that has remained.

But what we're also seeing is, "Hey, come back and work flexibly". We've seen issues . . . Not issues. We've seen grants like a compressed working week, so work four days instead of five days, lesser hours. But this is for the same pay. So work the same amount of work, manage it flexibly in these working arrangements, the compressed week, the reduced working week.

The other one is, "Start the day early, work later once you've put your baby to bed, etc. We'll make this work for you".

And the massive thing that's on the table, and you see it out of the Grazia Petition as well, is, "You sent us home. We kept working at home. We've proven to you that we can do this around the children. Please don't make us come back". That puts back into your family's life per parent maybe two hours a day. So you're getting four hours of face time from your nuclear family, from your two parents, to the children, if you let moms and dads work flexibly from home.

I think that is a really big benefit for young families, kids going to school, coming home with homework, needing to be dropped, picked. I think my kids have a better social life than I do. So it's that juggling. These things are the things that are making employees attractive.

In the lockdown, we saw companies say, "Because kids are at home, parents can take one to two hours to home-school their kids, do whatever it is. Send the kids to the moon and back, whatever it is the schools wanted us to do in the lockdown. You get your one to two hours to do that".

Why does that have to fall away? Who said we don't have to do homework after the lockdown? We still have to do the homework with these kids. We're now saying, "Well, what's the cost of an au pair?"

The concept of a family's income, 35% of a family's income is going back into childcare. Hugely excessive. Now, it's great. It makes the economy spin around and around we go. But if you've got young families, young parents, starting out, and you're denying them the ability to save for their retirement, they become a burden on [fiscus 00:23:50] at the end of the day. So we also have to think as employers, as responsible corporate citizens, "How do we allow the economy to spin? How do we retain institutional knowledge? How do we attract people to come back to work?"

At the end of this, if a woman feels, if a parents feels, "I can't work here because I can't manage to deliver what is needed of me", they will leave, and all that training you put in, all the time, the most amazing things you've given them fall by the wayside because they will choose their family. We work to live. We don't live to work.

I like working, but I say to my husband, "Real lawyers go to court. That's why I like to work". But I think that the younger me really needed to have face time with my kids, and I can only imagine how much harder it is as things have gotten exponentially more expensive.

So as employers, the appeal is to support young families. Don't wait for the government to roll it out, for the petitions in the UK to yield results. What can you confer within your operational prerogative in the workplace to attract people to want to work for you, to come back to work for you, or to stay working for you?

For you, it's institutional knowledge and retention. If you don't get that right, the best efforts of diversity and inclusion are not going to be sustainable long term. And then I think that's what we're looking at in childcare leaves across the globe.

Scott: Yeah. There are a couple of comments that have just come in here, one which says, "The status quo that we have at the moment is not just forcing women into childcare roles. It's denying men the ability to take an equal role as well".

And then we have another comment here. "What trends are you seeing? You mentioned some of them with companies enhancing the paternity leave policies. For example, Diageo has introduced 26-week paid paternity leave". Diageo is a massive company, very successful, did very well during lockdown as well with all the home drinking, never mind home-schooling. "Is this something that other companies should consider?"

For me, you're looking at making policy choices within an organisation, so if you lose your female staff in particular . . . and this is largely what's happening. Women tend to be in lower paid jobs. It makes more sense economically if you're in a relationship for the person earning the least money to leave work, if that's what's going to happen. There's also the emotional approval when you become a parent, and society's norms, and all those types of things that are in there.

But companies really have to say, "Well, look, can we offer this benefit to some people who might be parents, and this benefit to somebody who might be single, this benefit for somebody who's younger, this benefit for somebody who's looking to boost their pension pot, this benefit for somebody who's looking to wind down towards retirement or towards retirement, like me. You've got these different benefits, and quite a lot of firms that would have those flexible benefits.

Also, you mentioned in there the agile working. You haven't mentioned the four-day week, but that's another thing that's been pushed there. You did effectively talk about it by compressing hours and flexible working. All of those inclusive benefits are projected outwards and would make you more attractive as an employer to many people, in particular if you're . . .

If it's only family-friendly stuff, then somebody that doesn't have any kids, that's not so attractive. But it does show that you're trying to be inclusive. Particularly in the UK firms where we've lost an awful lot of EU workers, trying to retain staff that are there is a pretty sensible move that might happen.

So any comment there about the flexibility and the, if you like, flexible benefits that organisations might be able to offer, but also any of the contractual issues that might throw out for them?

Sherisa: There are a number of contractual issues. The reality is if you give a very big grant but the employee does not come back to work, man or woman, and you try and enforce this acknowledgement of debt, the person could be a person of straw, not much to recover.

Whatever grant that you've given and you quantify that as the debt that's owed, and you issue a letter of demand and you say, "Pay me within 14 business days", time lapses, the person doesn't pay you, and you try and sue, you'd be suing them on principle. Litigation on principle is hugely expensive.

When we refer to people of straw, they don't have any net worth that you can attach or secure to realise the debt that's owed to you.

Now, we were discussing yesterday in South Africa, under the Pension Funds Act, when an employee signs an acknowledgement of debt and you're able to issue summons and the person then leaves because, "It's not working out. I can't come back to work. I can't afford childcare, etc.", you're able to attach from the member's interest . . . The employee is a member of your pension fund because these are private funds. You're able to attach from the pension fund from the member's interest the amount that's owed to you. And at the best, the administrator will cease processing the funds out to the employee pending your summons being finalised before court.

Now, very often what you see happening in private practice is that ultimately the employee will come back to the table and say, "I don't want to litigate with you. I need my pension fund money out. I've now resigned to be home with my kids. How can we settle it?" And the employee will pay you back from that, and very likely it would result in some level of settlement.

I think the reality is no one disputes that these amounts are owed to the company. You've given this grant. But certainly, in commonwealth jurisdictions, we do have conventional penalties laws. We've always routinely said that if I did your paid maternity leave, you owe me 12 months. I don't really know where that came from. Who sat down with the maths and said 6 months' paid leave equals 12 months' service to Company A?

Common law says that the payback must be proportionate to the grant. So how did my 6 months equal 12? I mean, am I that ineffective that you need to double my time?

So we should also be looking at that because it's surprising that no one has questioned the . . . Remember, we talk about it must be reasonable. It must be proportionate. There's a balancing act, right? So I can sign this agreement no problem. When you try and enforce it, if I was litigious, I'd say, "I dispute the reasonableness of this. I think it's excessive".

I think if you think about the reasonable . . . We call it the reasonable man test. The reasonable person test, the officious bystander test, I'd challenge you to prove the reasonableness of this before court, but I deny it. It should be one for one maybe. I'm not saying that that's what it is. I'm just saying these are considerations.

The other thing is looking at flexible working, looking at agile working where we are, the movements. I mean, in the UK, we're saying flexible working should be a day-one right. You shouldn't have to clock your tenure before you can ask for the one day to work at home, which is a great win for everybody. People with kids, people without kids, people with cats and dogs alike.

But people with children now . . . You've got a woman with a new baby, a man with a new baby, the baby is needs to be nursed. The baby needs to be fed. It's going to be a little cause of concern if you're in a meeting and the baby is crying. So your policies need to be mindful of the realities of the grants you're giving.

Scott, you've raised it that when we give these things in the jurisdictions that we're in, you can't just take them away. Whether they're in the contract, whether they're in the policy, if something becomes a term and condition of my employment either through being put into the contract of employment itself, alternatively through custom and practice being consistently and routinely given to employees, the difficulty is I, as the employee, then reasonably expect that to be part of my conditions of service.

If you want to take it away from me, you need my consent. If I don't consent, you have to consult with me. And if I don't agree to the change, or I can't propose a viable alternative to the change, I could be made redundant because I do not work the change conditions you want to implement.

Now, that's the process we talk about for change in terms and conditions of employment. And it sounds like, "Oh my gosh, we went from zero to redundancy in like a split second". But, guys and girls, the reality is that we can't just give things and then just take it away. There's a process. We are in jurisdictions that are consultative, that impute into the contract . . . We call it the parallel evidence rule. You can put things into the contract based on practice. So be careful about this. Watch your policies.

The final point I'll say is at the absolute worst case, if you gave these things and you decided, "Not for me", and you didn't roll it out as a pilot, you didn't reserve those rights, and even if you did, employees could still argue to retain it, your best bet, your safest bet, would be to grandfather the employees . . . apply a sunset clause. Grandfather is a sexist term. To sunset these employees, and say, "You, my historically-tenured employees, will retain those benefits. All my new employees are on these conditions".

Now you've got two sets of conditions of service: one for the old employees, the older-serving employees, and one for the newer-serving employees with whom you stopped it. Which creates disparity in terms and conditions of employment and blah, blah, blah.

But these are all the ramifications thinking forward, certainly from the trends I've been seeing on the very progressive things, and it's commendable the kind of things that employees are being given.

A number of times they're saying, "I don't want to know. You get unlimited PTO, paid time off. You go and do with it as you see fit". I commend you if you want to do that. Remember, at a minimum in the UK, we get 28 days' leave, so please make sure that someone doesn't walk up on day one and take their unlimited time off.

We need to also protect our managerial prerogative in the workplace and say, "Well, you could take this childcare leave. You could take that leave. You could take that unlimited annual leave. At a minimum, you get this. Everything ex gratia that I want to give you will be subject to my operational prerogative". That means I have the right to say no.

Also, any leave you take gets deducted from those statutory grounds. So if you terminate, you can't say, "No, no, no, I only took all those ex gratia childcare leaves. I didn't take the statutory ones, and I certainly didn't take any of my accrued annual leave. So you could just pay me out my 28 days I didn't take this whole year".

These are the kinds of considerations when we're building these flexible conditions for young families, agile working for young families, mat and pat leave benefits, but we really need to step up and structure planning, unfortunately, for the worst-case scenario, whilst we wish everyone the best in their journey.

Scott: Yeah. I suppose the other things that come up quite a lot are that not all the most progressive firms would be unionised, but where they are, and you're looking at changes to terms and conditions, you'd be as well to negotiate. And the other thing would be a trial period that you might put in.

We've all lived through a massive trial period, or most of us anyway, with the pandemic and lockdown about working from home. I don't think that without that we'd be looking at hybrid working out to the scale that we are.

If we look at the Republic of Ireland, the Tánaiste wouldn't be talking about the remote working policies and doing the consultation at the moment and all that kind of stuff they're going through and saying, "Look, even though we're going back to work, we want to see home-working as part of the future". We wouldn't be doing it. But we've been through that experiment and we do know at least that a lot of that works.

Some of these things don't . . . If you look at some of the flexible things, some of them don't cost money at all. If you're looking at paying people when they're off child-rearing, or putting in a crèche, or subsidising childcare, or bring in voucher schemes, or whatever that happens to be, those things do cost money, but it's going to . . . For me, if you do that, there's always the possibility that you're going to have others that might be resentful because they don't get it.

I quite like the flexible benefits, but that in itself means that you've got lots of people on different terms and conditions of employment because they get certain benefits and they aren't.

So you either have complexity or you have simplicity. Simplicity tends to mean that the status quo continues and that you start losing your female workers in particular. The people who can't afford childcare, they're going to leave. And I suppose that's a choice that our listeners are going to have to think about when we're at a time where there are more vacancies than there has ever been on record. Is that a case of saying, but if you do bring it in, make sure that you get some advice on tying up the contract to the extent, as an employer, you can build in some flexibility, or there's a review period, or is dependent on you presumably meeting your targets.

So even those companies that say you can have unlimited time off, my reading of it is that most employees are there all the time because they don't want to be seen as the one that takes all the time off. But even if they do, you're still expected to meet various targets, and in reality, you can't meet those targets if you take all the time off that's available.

So there's a bit swing and roundabouts, but you need to retain that, because you don't want somebody turning up saying, "Well, I'm entitled for all the time off". Is that what . . .

Sherisa: Yeah, I think those are very valid points. I think that there's certainly a fear that if I'm the first to take you up on the childcare stuff, you might see me as I'm not committed, I'm not dedicated to my job, to my team, etc. So I should just kind of make it work.

On the reverse of that, when I do take up the working flexibly, working remotely, and you send me something at whatever time, I'm going to run and do it because I'm so grateful and I'm so scared that you'll take it away from me. And it's that fear that we need to address. We need to allay and reassure employees.

Generally, employees are scared. Generally, there's a fear in the workplace that the economy has opened up. We don't know what the flow of money is. I want to remain apolitical, but I do want to say that you can't not address the fact that we're experiencing soaring prices right now, cost of goods, cost of commodities, cost of properties. It's crazy. Petrol, my god. And I'm South African, so everything I look at, I multiply by 21 and I'm like, "Oh, my gosh, we're going back". But in that context, you need to reassure your workforce of your goodwill to them.

Remember, the employment relationship is one of trust. When we talk about dismissal for misconduct, by example, we talk about the fact that the continued employment relationship has been rendered intolerable, therefore justifying summary dismissal, dismissal on notice. That trust relationship has reciprocal obligations on both sides, and we need to re-install that issue of trust.

The other thing is you mentioned trade unions, etc. What about works councils? As you globally expand . . . In France, for example, we saw that now if you have 11 employees or more, you have to have a works council. That's a new requirement. It came out earlier last year, but then we went into lockdown. Can't really set up a works council when you're in lockdown, right? Now we're back, so now you've got to have your works council.

Policies like this are going to require consultation with your works council. Changes when you want to take it away are equally going to require consultations, and now you're not consulting with Sherisa and Scott, you're consulting with a works council vis-à-vis your workplace. So be mindful of those things.

After the Uber judgement, etc., we were promised out of the EU a directive on atypical employment protections, etc., but we've also seen from the Grazia Petition from the Parliament's commitment to want to give employees a day-one right to flexible working, work from home two days a week. You're seeing the impetus. This thing is taking momentum. But the net result that everybody wants to see is more people employed, more people working, more people actively contributing to the economy, and ultimately, freedom of choice to stay home and contribute in my 24-hour job that never ends, or to go to work and come home and work a second job.

So we need to build our workplace to be able to make it possible for these things to happen. Because if people are scared and they're constantly working, and if people are scared to take up the benefits, so they're spending all their money on childcare so that they can take the train and come see you every day and then get back on the train and never see their kids, you don't have a productive workforce. You have a physically present workforce. And that's the spirit with which you would be urged to consider what we're talking about today.

Scott: Okay. I suppose finally moving to the end, we've got a couple of questions there that . . . If people want to follow up, we'll give you the details. You can contact people. Thanks, Rolanda.

It can be really seen as part of your D&I initiatives and prerogatives that you're going to be coming forward here, that you're saying, "We are a progressive organisation. We give more than the £150 for maternity pay in the UK, or state benefit in the Republic. We give you 70% of your salary or we give you this". Those types of benefits along with flexible working, the agile working, compressed hours, the four-day week move, there's a lot of that coming through. We're discussing that at the Annual Review, by the way.

Those types of things should really be put into your equality type policies, because they're really about doing things that help those individuals. And if we can do that . . . Some of them aren't going to cost an awful lot of money. Some of them are.

And then, of course, we've got a question in here just about, "The company has paid maternity leave. You have to be in the company for two years to qualify and then agree to stay for 18 months when you return to work. Should there be stipulations at both ends, i.e. a qualifying period as opposed to the day-one right and also this 18 months?" And of course, you've got the reasonableness of that particular clause. Then even if it can be enforced, whether it's reasonable or not, whether it would be worthwhile. So we're going back to that.

So it becomes complex, but I think it really depends that if you want to embrace it, then you can look at it from a different angle and say, "We're trying to retain, we're trying to recruit, and we're a great place to work".

Sherisa: Agreed. I mean, imagine someone comes and accepts employment with you and then doesn't know that they're pregnant. Or let's put it the other way around. The father doesn't know that his partner is pregnant, and now he wants to exercise these leaves and he's like, "Oh, God, I haven't been here for long enough. What should I do? Do I keep quiet and not take my leave?" Is that really the culture you want to manifest in the workplace? That is the net effect.

I know we're pushed for time, but the pandemic has had positive effects for these conversations and also has allowed human resources and employment lawyers to be at the centre and the forefront of these strategic planning initiatives, because it's about the people. The people lead the way while businesses thrive into the future, through the pandemic, out of the pandemic, and into the future. That's really the approach that we've got to take. How do we make people want to invest in our company? Unless you can automate the whole company, you're going to need the people to do it.

Scott: Thank you very much, Sherisa.

You've got an ad there, folks, for 50% off. So top employment lawyers advise that it's essential to provide all staff with diversity and inclusion training on or shortly after starting employment. Legal-Island's "Diversity & Inclusion in the Workplace" eLearning course is tailored specifically to Irish law and provides comprehensive compliance training for all employees, ensuring they are aware of their roles and responsibilities in promoting a diverse and inclusive workplace for everyone. Look out for more information. We'll send that in the post-webinar email and you can claim 50% off because you've attended today.

Thank you, Sherisa. Our next webinars are next week, actually. On Thursday if you're in the South, we have Caroline Reidy from The HR Suite and she'll be dealing with performance issues. And in Northern Ireland, it's on Friday. It's with Seamus McGranaghan. We also have Stuart Nottingham coming over and we'll be looking at legal aspects of hybrid working and also ergonomics. So those are on next week for anyone that wants to come along on Wednesday. I think I said Thursday. It's Wednesday and Friday next week.

Sherisa from Elements GS, thank you very much. We'll be sending you along, folks, links to that video. We'll also send you links to further information. And if you want to get in touch, the contact details are there as well.

Thank you very much, Sherisa. Thanks, everyone, for listening. Hopefully we'll see you next week.

Sherisa: Thank you so much.

This article is correct at 23/09/2021
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Sherisa Rajah
Elements Global Services

The main content of this article was provided by Sherisa Rajah. Email sherisar@elementsgs.com

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