New parental leave allowances could be denied to school staff because of a loophole in their contract, writes Phil Revell
TONY and Cherie Blair's timing is impeccable for all kinds of reasons - not least because the Blairs will be among the first parents to benefit from new family-friendly legislation.
Cherie will be able to take advantage of new maternity-leave regulations which could allow her up to 33 weeks away from the hurly-burly of life as a leading barrister. Meanwhile, Tony can rest the grin and turn No. 10 over to the spin doctors for up to four weeks under new parental-leave provisions.
The new allowances come into effect on December 15 and schools need to be aware of the details - because teachers are uniquely affected.Parental leave, being introduced as part of the Fairness at Work legislation, offers unpaid leave to parents of children born or adopted on or after December 15.
Parents can take a total of 13 weeks of unpaid leave spread over five years with a limit of four weeks in any one year. Guardians and step-parents qualify for the leave and, despite its unpaid status, it will be taken up - at least by some.
"Estimates are that 2 per cent of men and 30 per cent of women will want to take advantage of parental leave," said Owen Warnock from Eversheds, employment law specialists. But teachers are faced with a Catch-22 which will effectively deny many the opportunity of taking up the offer. "There's a big area of doubt as to how this will apply to teachers," he says.
The problem is with the employers' right to defer the absence. If parental leave is expected to be "unduly disruptive" to the organisation, an employer has the right to postpone it by up to six months. It appears that schools could ask teachers to take this leave during school holidays.
"We don't think that these regulations are going to be of much use to teachers," says Mary Howard, legal officer at the National Association of Schoolmasters Union of Women Teachers, the second biggest teachers' union.
The loophole arises because the teachers' contract fails to define any holiday time for teachers - it simply sets out when they have to be at school. Teachers who insist on taking the deferred parental leave could find themselves in the ridiculous situation of opting for unpaid leave during their holidays. The exception is immediately after the birth or adoption of a child, when there is no right to defer.
The unions are working on a response to the anomaly.
"We've identified three priorities," says Ms Howard. These are: to make some of the leave paid, to reduce the deferment period and to seek to allow teachers to take the whole 13-week entitlement as one block.
"That's effectively a term," says Ms Howard. "It would be easier to arrange supply."
But employers are not going to be rushed into an early deal. "We haven't really begun to firm up on how we can approach this," said a spokesperson for the Local Government Association.
In the absence of a national agreement, industrial tribunals could be left with the task of testing the law.
Booklets or leaflets are available on the Department for Trade and Industry website at http:www.dti.gov.uk, or free from employment service job centres, or from the DTI Orderline (Tel: 0870 1502 500).
Further advice on legislation concerning employment is available from the regional offices of the Advisory, Conciliation and Arbitration Service (ACAS).
NEW MATERNITY LEAVE ALLOWANCES
These regulations don't come into force until next year because expectant mothers must book time off in advance. They apply to women whose expected week of confinement is April 30, 2000, and after.
Ordinary maternity leave is increased to 18 weeks from that date.
Mothers now need only one year's service to qualify.
Additional maternity leave can now be up to 29 weeks from the actual date of birth.
Mothers can take parental leave on top of the additional maternity leave, giving a 33-week break after having a baby.
KNOW YOUR RIGHTS
Who can take parental leave?
Employees who give birth or adopt a child on or after December 15, 1999, and who have completed one year's qualifying service with their employer by the time they want to take the leave. Both mothers and fathers can take parental leave.
How long does the leave last?
In most cases, leave must be taken in blocks or multiples of one week; but parents of disabled children can take leave in blocks or multiples of one day. The school must be given 21 days' notice.
What happens with twins?
Parental leave is for each child, so if twins are born each parent will get 13 weeks leave for each child.
When does parental leave have to be taken by?
Normally until the child is five, but in adoption cases for five years after the child is first placed with the family (or until the child's 18th birthday). In the case of a child with a disability, until the child's 18th birthday.
Can teachers return to the same job after parental leave?
Do employers need to keep records?
Employers are not required to keep records of parental leave taken, although many will want to do so for their own purposes.
Can employers ask for evidence that a teacher is entitled to leave?
What if an employer refuses to allow an employee to take
Employees will have the right to go to an employment tribunal if the employer prevents or attempts to prevent them from taking parental leave.