Speculation is rife as to the name, gender and title of the Royal baby, however one thing is certain, that for the first time in history, it will have equal rights to the throne whether it is male or female. With the hope of mirroring this move towards equality, a new system of shared parental leave has been put forward by the Government, and it is anticipated that these changes will come into force in 2015.
Like 9 out of 10 new fathers, Prince William is expected to take two weeks’ ordinary paternity leave (OPL) from his job. The vast majority of new fathers do not, however, take any additional paternity leave (APL), which is available if the mother is entitled to statutory maternity or adoption leave and has returned to work. The TUC believes that less than 1% of fathers took APL in 2011/2012.
What is APL and why aren’t more men taking it?
OPL gives an eligible employee the right to take one or two consecutive weeks of leave within 56 days of the child’s birth. APL gives an employee the right to one period of additional consecutive leave. It can last between 2 and 26 weeks and must start 20 weeks after, and end 12 months after the birth or placement for adoption. The mother of the child must have returned to work.
Employees are only eligible to be paid during APL if the mother returns to work with an unused statutory pay period. For example, if the mother returns to work after week 35 of her maternity leave and the father takes APL, only 4 weeks of the APL will be paid, being the balance of the statutory maternity pay period.
The TUC believes that more men are not taking advantage of APL because it is usually paid at the statutory rate (currently £136.78) and is rarely topped up by employers. It is, however, paid at the same rate as the majority of the maternity leave period and therefore the reason for the low take-up is not necessarily only financial. It is possible that men are put off by the perceived negative impact of taking a career break while their partner goes back to work. In addition, the concept of APL is a new one: it only applies to parents of a baby due on or after 3 April 2011 and the available figures therefore relate only to the first year of implementation.
Will the new legislation change anything?
APL will be abolished and replaced with a new system of shared parental leave in 2015.
The precise administrative details of shared parental leave have yet to be confirmed, but the new legislation attempts to afford greater flexibility to parents. An eligible mother will continue to receive 52 weeks’ maternity leave but apart from the first 2 weeks, which will be a compulsory period, she can choose to end her leave early and share the remainder of her leave with her partner, or the couple can decide to take the leave concurrently, as long as they don’t exceed the 52 weeks. Statutory shared parental pay will be available to those who are eligible. It is hoped that by sharing the responsibility of childcare it will strengthen the family unit and begin to break down certain stereotypes.
The purpose of the new legislation is to make it easier for parents to choose to share childcare responsibilities. Given the very low take-up of the APL regime, we will need to wait and see what impact these changes will have.
Managing paternity leave
• To be eligible for OPL/APL, an employee must satisfy certain conditions including length of service; relationship to the child/mother; and duty of responsibility for the child.
• The employee must give written notice to the employer of their intention to take OPL/APL, including details of the Expected Week of Childbirth, the length of the OPL/APL, and the date of starting their OPL/APL.
• During the OPL/APL, employees are entitled to the same terms and conditions as stated in their employment contract, except those relating to remuneration. The employee’s continuity of service is not interrupted.
• An employee usually has the right to return to the same job in which they were employed immediately prior to taking the leave. If certain conditions apply, the employer is entitled to propose an alternative job to the employee which is suitable and appropriate to them in the circumstances, which cannot be on less favourable terms and conditions than those which would have applied had the employee not taken OPL/APL.
Issues to consider in reviewing your paternity policy
• A paternity leave policy should be gender neutral because paternity leave can be taken by employees of either sex, provided they satisfy the eligibility requirements.
• Review contractual terms and policies to ensure that payment terms during OPL and APL are clear.
• If you enhance maternity benefits above the statutory minimum, consider whether to provide similarly enhanced paternity benefits. Consider taking legal advice on this point as it is likely that employees will challenge those employers who choose not to treat employees on maternity and paternity leave equally.
• Implement a separate policy for parents adopting children as these rights vary slightly.
Emilie Bennetts is an Associate and Kate Bunn is a Trainee Solicitor at Charles Russell LLP