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.