Are parents being offered real choice?

The government’s pledge to extend family-friendly rights was first announced in its pre-budget report in December 2004. It promised to give every child “the best start in life and to give parents and carers more choice about how to balance work and family”. But how will this laudable aim be achieved?

The Department of Trade and Industry’s (DTI) consultation paper, Work and Families: Choice and Flexibility, was published in February, and introduced the controversial proposal of allowing mothers to transfer part of their maternity leave to fathers. The DTI consulted with employers, parents, and representative organisations, and its response to the consultation was published on 19 October.

A father will be entitled to take paternity leave during the second half of the maternity leave period, but only if the mother returns to work. In other words, only one parent can be on maternity or paternity leave at any one time during the 12-month period (apart from during the current two weeks’ paternity leave), and it is up to parents to decide who that should be.

Change in attitudes

Without a fundamental change in attitudes towards child-rearing responsibilities, the take-up of this proposed new right is likely to be low. It will involve a change in the status quo and disruption to both parents’ work and, potentially, their career progression, with little or no incentive for fathers to avail themselves of the new right.

Payment during this additional paternity leave will be at the same rate as statutory maternity pay (SMP), which is currently 106 per week. But this will only apply where the mother would have continued to be entitled to SMP if she didn’t return to work. So, if a mother returns to work after six months’ maternity leave – effectively forfeiting three months’ SMP – the father is entitled to receive three months’ statutory paternity pay. However, if she isn’t entitled to any further SMP, the paternity leave will be unpaid.

What was not addressed in the consultation response is the position of employers that pay enhanced maternity pay, particularly during the second six months of maternity leave. The consultation document indicates that one in five employers (which em-ploy 39% of all workers) provides enhanced benefits.

The government’s resp-onse states that employers will not be legally obliged to offer occupational top-up payments to a father even if they do so for a mother. But, worryingly, this ignores the risk of sex discrimination claims from fathers seeking paternity pay in line with maternity pay where employers provide enhanced benefits during the second six months of maternity leave.

Enhanced benefits

If you are an employer that provides enhanced maternity benefits, review them to ensure you are no more generous to women than men. In doing so, and to be able to afford to pay the same to men as women, you may well choose to take steps to reduce the level of benefits offered to women. However, if many employers opt to do this, it may result in women being forced to go back to work because they cannot afford maternity leave without enhanced benefits.

Unless this is addressed, the net effect of these proposals, which aim to give parents and carers more choice, may actually give many of them less choice.

The government has acknowledged that further work needs to be done in developing its approach to this proposal, but it is disappointing that it has failed to get to grips with this fundamental issue.

Key points: government proposals

  • To increase the period of statutory maternity pay to nine months from April 2007, and to 12 months before the next general election.
  • To give all mothers who qualify for maternity leave the right to take 12 months’ leave.
  • To introduce the opportunity for fathers to take up to six months’ additional paternity leave.

By Jane Amphlett, partner, and Zoe Balmforth, associate, at Addleshaw Goddard

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