A father’s right to care

The DTI’s current proposals to extend paternity rights highlight the disparity between the statutory rights of men and women to take time off to care for their children. A recent European Court of Justice (ECJ) decision has strengthened fathers’ cause and men could take action in the English courts to enforce their rights under the Equal Treatment Directive.

Fathers may already be suffering from sex discrimination because they are not currently entitled to take an equivalent length of leave from work (paid or unpaid) to care for their children as that allowed to mothers. National legislation, which implemented the Equal Treatment Directive, may discriminate against men by excluding their entitlement to such leave. This is the main implication of the ECJ’s decision in Land Brandenburg v Sass [2005].

While it is well intentioned and may improve employees’ work-life balance, the DTI’s proposal (published on 28 February 2005) to allow fathers to take part of the paid statutory maternity leave period (which only women are currently entitled to) by the mother ‘transferring’ it to the father reinforces the fact that fathers do not have equivalent rights to women.

Although there are objectively justifiable reasons for not allowing men to take some of the time off where the purpose is to allow women to recover physically from the birth, there is unlikely to be an objective justification for not allowing men to take an equivalent period of the statutory maternity leave, when the purpose is arguably only to care for the child.

The facts in the Sass case are not straightforward, but the implication of this decision for English law is twofold. First, in the UK, additional maternity leave for women only potentially sexually discriminates against men and therefore could be challenged through its inconsistency with European law (the Equal Treatment Directive). Second, Parliament may decide, if it agrees with the interpretation, to act to correct the position and grant male employees equal access to a period of leave equivalent to the six-months additional maternity leave.

In the UK, there are two different periods of maternity leave – ordinary maternity leave (OML) which is the first 26 weeks, followed by a further 26 weeks’ additional maternity leave (AML). AML does not attract the same employment rights as OML.

If the primary purpose of OML is to allow the mother to recover physically from the birth in addition to caring for the child, it is likely that under the new DTI proposals fathers will only be entitled to take the maternity leave falling between weeks 26 and 39 after the birth. AML is arguably only for the purpose of caring for the child; it must therefore be open to fathers to ask for equal access to a period of leave which mirrors the whole of the AML and any part of the OML which is not for physical recovery.

Before the present government came to power, OML was limited to 14 weeks. This suggests that this is the only period for which the absence is for both caring for the child and physical recovery.

By offering the right to take leave to care for a child only to women, the DTI’s proposals are potentially sexually discriminatory, as the only reason men are precluded from this right is because of their sex.

If the government wants to resolve this potential area of gender discrimination, it will have to offer fathers the right to take the whole period of the statutory maternity leave which is solely for caring for the child, not just part of it. Otherwise, employers will need to prepare for possible discrimination claims in the future – unless they take a proactive approach.

Emma Bartlett is a solicitor with City law firm Speechly Bircham

How maternity leave and benefits work

  • At present, there are two periods of statutory maternity leave which only women are entitled to take: ordinary maternity leave (OML) and additional maternity leave (AML)
  • OML is currently 26 weeks, during which the mother receives statutory maternity pay (SMP)
  • SMP is paid at two rates. During the first six weeks of OML, the mother receives higher rate SMP calculated at 90% of her normal salary. For the remaining 20 weeks of the OML period, she receives SMP at the lower rate, which is currently 102.80 per week or 90% of her average weekly earnings if less
  • AML runs from the end of the OML for a further 26 weeks. It is only available to women who have been continuously employed by the same employer for at least 26 weeks at the beginning of the 14th week before the expected week of childbirth. Mothers are not entitled to any statutory pay during this period
  • The benefits that women are entitled to under their contracts of employment during AML are far more limited than under OML
  • In the OML period, employees retain all their contractual benefits except those relating to the pay elements of their remuneration package. So they continue to accrue continuous service and contractual (and statutory) holiday entitlements. They also retain use of their company car, telephone and personal computer; benefit of insurance, profit share and share option schemes, employer pension contributions, and professional subscriptions
  • During AML, the rights to these contractual benefits are suspended and employees are only entitled to bare contractual rights such as access to the company’s disciplinary and grievance procedures, the employer’s trust and confidence and continuity of employment
  • The new DTI proposal that mothers could continue to receive SMP during the AML could give rise to a right to an extension of the benefits that apply during OML in the AML period

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