For businesses, the new Shared Parental Leave rules don’t simply spell added administrative challenges but real opportunities to bring key female staff back to your business quicker.
Shared Parental Leave is a new legal entitlement for the majority of parents of babies born from 5 April 2015. The same goes for children placed for adoption on or after that date. Out of the total of 52 weeks available, the first two must still be taken by the mother as maternity leave; for health and safety reasons and in recognition of the special bond that is formed between a mother and her new-born baby. After this, it’s all up to the parents.
Shared Parental Leave can be taken by mothers along with someone who is either the child’s father or the mother’s spouse, civil partner or partner, who shares the main responsibility for caring for the child. Both must fulfil a number of eligibility criteria to qualify which you can see here.
Under the new scheme, employees will have the same rights to maternity leave and ordinary paternity leave as they currently do, but Additional Paternity Leave will be abolished. Instead, mothers will be able to convert up to 50 weeks of their maternity leave and 37 weeks of their statutory maternity pay into Shared Parental Leave and Pay. Unlike maternity and adoption leave, employees can ask to stop and start their Shared Parental Leave and return to work between periods of leave. If no agreement can be reached, the employee is entitled to take the total amount of leave requested as a continuous period. Each parent is allowed to make three separate requests for periods of leave although some employers might allow for more.
Although there has already been some scepticism about whether or not Shared Parental Leave will become a success amongst parents and employers alike, the new rules could be a real sea change in terms of workplace equality.
The key will be to address the same cultural obstacles that were to blame for the failure of Additional Paternity Leave – namely the fact that men still earn more than women do, and the fact that extended leave tends to have a negative impact on careers.
Since women on maternity will still be entitled to 90 per cent of her salary for the first six weeks of maternity leave, it seems likely that most mothers will continue to take that time off themselves. But there are numerous reasons why a business might want to encourage women back to work sooner than the typical 52 weeks. After all, this is a long time to be without key members of staff and some women are themselves keen to return sooner if circumstances permit it. By offering enhanced Shared Parental Leave, women might be incentivised to cut short their own maternity and share it with their partner instead. There is certainly no reason why businesses can’t have a conversation with pregnant employees about the new rules to make sure they understand their options and gauge whether there is any interest in the new scheme.
Of course, Shared Parental Leave should not simply be offered to women but made equally available to male employees. There is a real risk that men will feel that they are treated differently, even unfairly, if their female colleagues receive enhanced contractual maternity pay, and they only get the standard, flat rate. They might even consider bringing a claim for discrimination. So bear this in mind.
The Equality Act 2010 created specific protection for women during pregnancy and maternity leave. This is to protect a woman’s biological condition and to recognise the special relationship between a mother and her new-born baby. Direct sex discrimination law states that if a man wishes to bring a claim, “no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.” As such, a man is unlikely to succeed in making a sex discrimination claim by comparing his situation on Shared Parental Leave to that of a woman on maternity.
However, a man would almost certainly be able to demonstrate less favourable treatment if he was paid the standard rate of Shared Parental Pay while his women colleagues taking Shared Parental Leave enjoyed enhanced contractual pay. Therefore, matching pay in this regard would be wise.
In short: Businesses should make sure they can afford contractually enhanced parental pay to both their male and female staff, or risk falling foul of workplace discrimination law.
The issue of whether to offer any kind of incentive to employees at all depends, in part, on the make-up of your business. If a large proportion of staff are women, then you’d certainly be wise to consider the benefits of key employees returning sooner than 52 weeks after child birth.
Do remember that it is against the law to change an employee’s terms and conditions, other than their entitlement to pay, while they are on Shared Parental Leave. They still have a right to return to the same job if they have taken 26 weeks leave or less – regardless of whether this was taken as traditional maternity leave or shared with a partner over a longer period. Likewise, it remains automatically unfair to dismiss or make redundant employees because they are or have been on Shared Parental Leave. If the employee’s role becomes redundant during their leave, the employee has the same priority in relation to alternative employment as applies to women on maternity leave.
Shared Parental Leave will soon become an option for eligible employees and there are many ways in which businesses can benefit from these new rules. The starting point, and the absolute key to its success, is to make sure all employees – male and female – are aware of the changes. Ultimately, the scale of take-up will come down to the economic viability of sharing leave for individual couples. But by making sure anyone who requests this right is treated fairly and not in any way disadvantaged, business can help set a new standard for how leave to care for young children is allocated both in the home and at work.
Fiona Martin, Director and Head of Employment Law www.ms-solicitors.co.uk
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