Hannah Ford: Shared Parental Leave – throwing the baby out with the bath water?

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With effect from 5 April 2015, the legal landscape for co-parenting employees will change unrecognisably. By virtue of the shared parental leave regulations, eligible parents will be able to take up to 50 weeks of interchangeable parental leave. The legislative changes will further enfranchise fathers to take primary childcare responsibility, enable parents to take maternity and paternity leave simultaneously and, perhaps most radically of all, enable parents to take interchangeable blocks of leave, effectively ‘boomeranging’ in and out of active employment to meet the demands of modern family life. Employers are now grappling with questions from expectant parents about their rights whilst assessing the likely impact on their businesses and culture.

The concept of parents sharing the ‘pot’ of maternity leave is, of course, not new. Since 2011, fathers have been entitled to take “additional paternity leave” of up to 26 weeks which is offset against the mother’s balance of maternity leave. Although heralded in 2011 by the Liberal Democrats as “revolutionary to family life”, employee take-up of additional paternity leave has been tepid. A 2014 survey suggested that as few as one percent of fathers had made use of this right. Employers could, therefore, be forgiven for ‘hedging their bets’ that shared parental leave will be equally as (un)impactful. However there are major distinctions between the old family leave framework and the new.

Under the new law, fathers can take up to 50 weeks’ parental leave. Currently, paternity leave and additional paternity leave combined equates to a maximum of 28 weeks’ leave. This extension of leave may necessitate a cultural shift in the workplace. Employers should perhaps steel themselves for their male workforce taking a prolonged period ‘out of the game’. Some male dominated industries may need to specifically train their staff to deal with requests and normalise the ‘hands-on stay-at-home father’. Is it possible that we will see the introduction of the stork emblazoned “You’re leaving to have a baby!” card and accompanying office baby shower for male employees? Crucially, male employees who take extended leave will be forced to grapple with the challenges presented by (almost) a year ‘off the field’; the change in workplace personnel, attempting to pick up and resume work stalled or halted nearly a year down the line, stunting of career progression and other transitional issues which have formed the basis of so many sex discrimination claims for returning mothers.

Employees will now be able to take “shared parental leave” in three interchangeable blocks of as little as one week. By contrast, additional paternity leave can only be taken by fathers in one neat block of up to 26 weeks. The concept of mother and father dipping in and out of active employment over the course of a year may lead to complicated HR and business planning decisions. It seems inevitable that calculations surrounding entitlement to cash benefits and accrued holiday in particular, will become increasingly complex from a HR perspective. Businesses are also struggling to contemplate how they will arrange cover for the phantom employee on parental leave, who repeatedly appears and disappears from the workplace. Larger employers may, perhaps, be able to bear the financial and administrative burden more readily through the use of secondments, temporary or bank staff but smaller employers who do not have that luxury may suffer financially as a result.

It also remains unclear whether employers who offer enhanced maternity pay will need to match such enhancements for fathers taking shared parental leave, or face liability for sex discrimination. Until this issue is tested by the Tribunals, many employers are adopting a ‘wait and see’ approach while maintaining their existing enhanced maternity packages. Others are striking out first, by shrinking their maternity packages down to statutory levels, equal to that which is offered to fathers, so as to mitigate the risk of any such claims.  This is an unfortunate and perhaps unexpected consequence of the proposed changes. If, however, fathers are entitled to identical enhancements and take up is high, this may result in considerable additional expense for employers. The government’s impact assessment on this issue had assumed that take up by fathers will echo the tepid take up of additional paternity leave. That assumption may well be flawed, however, particularly given that shared parental leave will now be a ‘headline’ right for fathers. Parents are now likely to scrutinise their respective employers’ maternity / parental pay packages to consider which is the more lucrative and tailor and time their leave accordingly.

It seems probable that the legislative changes will take time to gain traction in the workplace. However, notwithstanding this and the complexity of the new provisions, it is difficult to criticise the government’s overall objective of facilitating flexibility for the modern family and supporting fathers in assuming greater childcare responsibilities. Whilst the legislation will inevitably be difficult to manage from the employer’s perspective, it is surely a step in the right direction for the forward thinking employer.

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