Small steps towards more equality

FROM April this year, changes mean eligible parents will be able to share leave for 12 months after their baby’s birth, says Heather Munro

SHARED parental leave is an employment right already well established in other European states. In Germany, one of the most generous with regard to expectant parents, leave may be taken for up to three years. In Sweden, widely held to be at the forefront of gender equality, parents may take over a year’s leave on 80 per cent of salary.

UK employment law is about to take a step closer to these European models. From 5 April eligible parents will be entitled to share leave for the first year of their baby’s life, or the first year after their child is placed with them for adoption.

The government thereby intends to promote gender equality in and out of the workplace and eliminate the disapproval heaped on men who want to work less and spend more time with their children.

While the changes may be “baby steps” in comparison to some European states, relatively speaking, the impact on the UK workforce and for UK employers could be profound.

There are several conditions, but the most significant in practice is at least 26 weeks’ continuous employment. Up to 52 weeks may be taken during the period from birth or adoption until the child’s first birthday. The total leave available to one or other parent will be reduced by periods of maternity leave, pay, or allowance taken by the mother, including two weeks’ compulsory leave after the baby is born.

Fathers will be able to claim their two weeks of statutory paternity leave on top. Parents will be able to decide how to allocate their leave between them, which may be at the same time or alternated with periods of work. Up to three separate sets of leave may be taken. Employers will be entitled to refuse leave in separate sets but not the total taken.

Consideration should be given to the legal and practical impact which the new law will have on employers. It will be incumbent on them to ensure that their policies and procedures are compliant with the new legislation.

To ensure that employee rights are observed, employers will need to act carefully in calculating the leave and pay to which an individual employee is entitled in accordance with whatever combinations of leave are taken.

Current discrimination law protects mothers on maternity leave but offers no equivalent protection to fathers on paternity leave. For now, the courts say that there is no obligation on employers who provide enhanced maternity rights to mothers to offer the equivalent benefits to fathers. However, the law adapts to societal change. Increased recognition of fathers’ rights to spend time with their children via shared parental leave may give rise to similar anti-discriminatory protections for men.

There is a further question of whether employers who offer enhanced contractual maternity packages to mothers should be offering an equivalent package for shared parental leave.

The new law will, no doubt, be of concern to employers, in particular small businesses, who often lack the capital and/or resources to implement and monitor frequently changing employment rights and responsibilities. Although employees will be obliged to give relevant notice, the impact which the leave may have will no doubt require forward planning by employers. That said, it remains to be seen how popular shared parental leave will be.

A TUC study for 2011-2012 found that less than 1 per cent of fathers opted for additional paternity leave introduced by the previous government. Ultimately, economics may be the determining factor for couples approaching parenthood.

Shared parental leave ought not to be viewed in an employment law vacuum. Perhaps most likely is the influence which it will have on family law. Scots family law has evolved and continues to evolve in light of changing societal attitudes to family life, founded upon principles which place the needs of the child at the core of decision-making. It remains to be seen whether shared parental leave propagates shared care in infancy and childhood.

Only time will tell if shared parental leave becomes the norm and if that is due to changing cultural attitudes, parents’ desires to share equal care, economics, mothers wishing to return to work – or a combination of all of those different factors.