Changes to paternity leave

As part of a raft of employment law changes being introduced by the coalition Government, April heralds the arrival of Additional Paternity Leave (APL) legislation that will mean that new fathers of children with an expected week of birth beginning on or after 3 April 2011 will be allowed up to 26 weeks’ additional paternity leave if the mother returns to work.

As a concept, this is a dramatic shift from the two weeks’ unpaid leave that fathers were previously entitled to – described by Deputy PM Nick Clegg as a “paltry amount of time”.

It may be paltry no longer, but will the introduction of the new rules be an administrative headache for HR departments across the UK and how can government, society and employers ensure that fathers feel able to take up flexible working options offered to them? Is the culture of UK business as progressive as the legislation? Furthermore, are there any hidden surprises in the new legislation that employers should be aware of?

Steven Overell, associate director of policy at The Work Foundation, believes that the new legislation presents different challenges for different-sized companies.

“Small employers argue that they have a relationship with their employees that is close and that they don’t need the law to intervene,” he says. “They can simply have a conversation. They don’t need the paraphernalia of law and don’t have HR apparatus to cope with this.”

Additional paternity leave legislation

HR needs to:

  1. Be informative – employees don’t understand a lot of the changes.
  2. Analyse policies on a regular basis and revise when necessary.
  3. Look at the cost implications.
  4. Address internal resistance.
  5. Enable cultural change by pointing out what is possible with flexible working, for instance by highlighting such things as saving office space or accepting that some employees concentrate better at home.

Meanwhile, Overell says that bigger firms complain of the cumulative effect of employment law changes, with too many changes in too short a time.

“Of course, this is a headache and lots of employers worry about burden and tribunal claims. It’s a hot political topic,” he argues. He also comments, notwithstanding the new legislation being brought in, that: “Put into context, nationally and internationally the UK has business-friendly employment law. It doesn’t amount to an excessive burden on business and the fuss about tribunals is overblown.”

Uncertainty breeds concern

Be that as it may – and a lot of employers would disagree with it – any administrative burden of new rules is sometimes overshadowed by lurking threats of what might happen should the law have to be tested.

The current understanding is that additional paternity leave pay is paid at the statutory maternity pay rate, or 90% of the employee’s earnings, if this is less than the statutory rate. (As of 3 April 2011, rates for statutory maternity, paternity and adoption pay increase from £124.88 to £128.73 per week).

However, employment law expert Christopher Syder, partner at Davies Arnold Cooper, says: “We feel there is going to be scope for significant conflict concerning whether employers should pay enhanced paternity pay.”

Syder cites the ECJ decision in Roca Alvarez v Sesa Start Espana ETT SA, which found that the differential treatment of men and women could no longer be justified as a means of protecting new mothers and, in fact, was liable to perpetuate traditional gender roles by keeping the father’s caring role subsidiary to that of the mother. Syder queries whether or not this means that employers who do not give fathers who are on additional paternity leave the same benefits as mothers on additional maternity leave would be guilty of sex discrimination. “This is an area of much uncertainty,” he says.

Mike Emmott, industrial relations adviser at the Chartered Institute of Personnel and Development, agrees. “He might make a claim. The courts would be sympathetic,” he says, and this may therefore prompt employers to make changes to their maternity packages.

“Although there might be short-term contractual problems in changing enhanced packages some employers sadly may do this,” says Emmott.

“Normally, family friendly policies are not contractual,” adds Syder. “Though employers are expected to consult and explain a change in policy, it will be more difficult if an enhanced scheme has been in place for a number of years. Any employer with an enhanced maternity package is staring down the barrel. It’s so hard to backtrack.”

Case report

The European Court of Justice decision in Roca Alvarez v Sesa Start Espana ETT SA ruled that Spanish legislation permitting employees to take time off to feed a baby breaches the Equal Treatment Directive.

While a mother could take the time off provided she was an employee, a father could take the time off only if both he and the mother were employees. Although the law was introduced in 1980 to promote breastfeeding, it had since been revised to include bottlefeeding. As such, the differential treatment of men and women could no longer be justified as a means of protecting new mothers and, in fact, was liable to perpetuate traditional gender roles by keeping the father’s caring role subsidiary to that of the mother.

Given additional maternity leave (AML) is to become “transferable” to the father in the form of additional paternity leave, this may mean that AML should not be treated as protecting the biological condition of the mother. Therefore, employers who do not give fathers on APL the same benefits as mothers on AML would be guilty of sex discrimination.

While enhanced pay is one consideration for employers, there is a swathe of additional issues that, if transferred to a father, need to be taken on board, such as keeping-in-touch days, pension and bonus entitlement while on APL, and subsequent flexible working requests. “Workplace planning becomes more complicated,” says Syder.

And of course if the father’s employer affords generous maternity pay, while the mother’s employer sticks to the bare minimum, the parents will want to weigh that up when deciding which of them takes leave. This leads into the very reason that the legislation has been brought in.

Bringing everyone into line

“It is encouraging fathers to play a greater role,” says Overell, “and it’s related to the desire to push ahead on flexible working. This has been a long-standing direction ever since the right to request was first brought in.”

Syder says: “In my view it is being brought in on the ticket of greater equality between the sexes and to address that gender inequality in the workplace. The simple reality is legislation is a social policy piece. It’s going to change people’s perceptions and views about who looks after children under a year.”

“The novelty of sharing childcare between partners adds a layer of complexity,” continues Overell. “The gradual direction we’re moving in is that everyone who works should have the right to flexible working.”

Syder points out that: “Flexibility in the labour market is seen as competitive advantage that will get more investment,” however, Overell is worried that: “In a way the law has been advancing but business culture hasn’t been moving as quickly. Flexible working is still quite controversial.”

Which brings us to the point of whether or not, even if with the lure of an enhanced paternity package, the culture of UK business will restrict men who want to take up the extra leave.

“Whatever happens in the legal statutes, they should have the right to work flexibly,” says Overell, “but that’s not to say that the employer won’t look askance and believe they lack ambition.”

Emmott, however, says that the culture is shifting: “Young men are undoubtedly more relaxed about looking after children. Amongst younger parents the idea of shared childcare isn’t a Scandinavian idyll.”

So what does all this mean for HR? How can HR departments balance the need to impart the proper information, ensure that the company is as protected from legal action as possible and put business owners’ minds at rest over fears that it opens the floodgates of dads sporadically taking time off to rush home and care for the kids while promoting the idea of flexibility to employees?

“We can see it as a loss for employer and a gain for the employee but actually it’s an opportunity for both. It doesn’t have to be seen as a trade-off,” says Overell. “There are quite a few opportunities with flexibility. It can shake up the ways of operating.

“It’s largely a question of awareness, and reassuring men that taking the leave won’t be detrimental to their careers. All they can say is: ‘We are an enlightened organisation and that, provided you show commitment, we will reciprocate’.”

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