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Shared parental leave: sharing the burden or adding to the headache?

Posted on by from Barlow Robbins

Shared parental leave has been heralded by some as a cultural shift in the way society approaches traditional gender roles in childcare. But for HR professionals, the reality of implementing the new regime can seem like a daunting prospect. Rebecca Berry sheds some light.

What is shared parental leave?

From April 2015, parents are now able to share the family leave in the first year of a child’s life. After the first two weeks (or four weeks for factory workers) of compulsory maternity leave following a birth, it is now open to a mother to elect to curtail her maternity leave and opt to take shared parental leave. However, despite the introduction of SPL, the default position remains that a new mother will take up to 52 weeks maternity leave unless she either returns to work or elects to take SPL. Additional paternity leave has now been abolished.

SPL can be taken by the mother or her partner, and can even be taken by the mother and her partner at the same time. The intention behind the legislation is to enable partners to take the primary childcare responsibility, so that it is not just mothers who will be entitled to prolonged leave around the birth (or adoption) of a child. An employee on SPL can have up to 20 keeping in touch days (or SPLIT days), compared to 10 Keeping in Touch days available to those on maternity leave.

SPL is available for up to 50 weeks and shared parental pay is available for up to 37 weeks. Statutory shared parental pay is paid at the same rate as statutory maternity pay, although as with maternity pay organisations can enhance this. 

Whilst the Department for Business Innovation and Skills have specifically stated that companies can enhance maternity pay, without necessarily needing to enhance shared parental pay, some legal commentators have stated that (after the first two weeks following a birth) there is no difference between a woman on maternity leave and a partner on SPL. As a result, there could be an argument that a woman on maternity leave is a comparator for a man on SPL, which could form the basis of a claim of sex discrimination if they are treated differently. 

An organisation treating such employees differently would seek to prove that a woman is being so treated because they are afforded “special treatment…in connection with pregnancy and childbirth” (section 13(6)(b) of the Equality Act 2010). However, the courts have held that this needs to be objectively justifiable as a proportionate means of achieving a legitimate aim: i.e. compensating the woman for the “disadvantages occasioned by her pregnancy or her maternity leave” (Eversheds Legal Services Ltd v De Belin UKEAT/0352/10). Before a company which offers enhanced maternity pay decided against enhancing shared parental pay, it would be wise to make a very careful assessment as to the reasons for doing so. 

How does SPL work?

In practice, the administration of the scheme with its notices and counter-notices means that to many, it seems full of pitfalls. Even if employees do not show interest in taking SPL at present, employers would be wise to anticipate a future demand and to put in place clear policies to guide both employees and those in the HR team through the perceived minefield. 

To take SPL, both the mother and her partner must be “economically active”, i.e. employed or self employed for at least 26 of the 66 weeks prior to the expected week of childbirth (“EWC”), earning at least £30 a week in any 13 of those weeks.

Once the mother has given a curtailment notice to her employer to end her maternity leave, her partner will need to give their employer a notice of entitlement and intention to take SPL. The notice of intention to take SPL does not need to (but can) set out the dates of the proposed leave. The mother will also need to sign a declaration for her partner to provide to their work that her maternity leave has finished.

When the mother and partner wish to take SPL, they need to provide at least 8 weeks notice to take SPL  setting out the start and end dates of each period of SPL requested in that notice. The notice can be given for more than one period of leave - SPL can either be taken in a continuous block or in discontinuous blocks of leave. 

If an eligible employee requests a continuous block of leave, it cannot be refused by the employer. However, if an employee requests discontinuous blocks of leave, the employer can either consent, offer alternative dates or refuse the period of leave without offering alternatives.

An employee can serve more than one notice to take SPL, but they are limited to three such notices – there are some exceptions, for example a notice will not count as one of the three if it has been withdrawn at least 15 days before the leave started.

What does all this mean?

This is the big question – with all the hype that has surrounded its inception, how big an impact will the new right to SPL have on our working environments? Will it change the way women are perceived in the workplace? Will men be as likely as women to take long periods of leave when children are born?

When additional paternity leave was introduced in 2010, it was heralded as seeking to achieve many of the same aims – but only 1% of men took up that entitlement. By the Government’s own projections, it is anticipated that only 8-9% of employees may take up the new right to Shared Parental Leave, but it will be a case of waiting and seeing what the long term effect will be. 

As the new regime has only recently come in, it is too early to rely on anecdotal evidence and, indeed, it will be interesting to consider whether any HR professionals have yet come across families wishing to rely upon it. 

 

Rebecca Berry

By Rebecca Berry

Barlow Robbins

Rebecca Berry, employment lawyer, Barlow Robbins solicitors

Barlow Robbins

Barlow Robbins

Barlow Robbins Solicitors is a leading Surrey law firm that offers dynamic legal support for successful individuals, businesses, schools and charities.

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