Are fathers’ rights at work working?

Despite the introduction of shared parental leave, employers have been slow to enhance fathers’ rights at work. John Smith, a solicitor at Burges Salmon, looks at how better benefits for fathers, financial or otherwise, can improve their experience of the workplace.

One of the main priorities for employers is recruiting and retaining the best talent. However, in a society which is constantly evolving, keeping pace with what employees want whilst remaining competitive is challenging.

Over the past 20 years, there has been a seismic shift in the way people work. The Monday to Friday, job for life is fast becoming anathema. There has been a 27% increase in the number of part-time workers since 1997, according to the Office for National Statistics (ONS) with an estimated 8.44 million workers now working part-time in the UK; a further 4.78 million are self-employed (up from 3.4 million in 1997). In addition, thanks in the main, to technological advances, flexible, short-term contracts and freelance work are now available in a way they were not before.

There have also been big changes in people’s attitudes to and expectations about work. Whilst historically part-time work has always been the preserve of working mothers, increasing numbers of fathers are now wanting to be actively involved in bringing up their children both for  personal satisfaction and because many mothers want to continue working.

Whilst women are still more likely to take on the lion’s share of parental caring responsibilities, the number of stay-at-home fathers has almost doubled since the mid-1990s. A recent study by the charity Working Families reveals that nearly half of working fathers would like a less stressful job so they can spend more time caring for their children, with a third willing to take a pay cut to achieve a better work-life balance.

These changing trends should provide food for thought. Whilst many forward-thinking employers now provide packages to encourage the attraction and retention of female employees, the canny employer may also want to review their working practices and policies with an eye to attracting and retaining working fathers.

Fathers’ rights at work: the law

The focus of the original legislation aimed at improving employment rights in this area was firmly fixed on improving the lot of working mothers. Paternity leave and pay weren’t introduced in the UK until 2003 and whilst parental leave has been available since 1999 for both mothers and fathers, this is unpaid.

It wasn’t until April 2015 that shared parental leave was introduced, a right  which allows fathers to take up to 50 weeks’ leave after the birth of a baby whilst retaining the right to return to work. So whilst the statutory rights on offer for working fathers have certainly improved in recent times, there is still plenty of scope for employers who want to do more.

One area which many employers have chosen to enhance is what they offer by way of paternity pay. By law, fathers are permitted to take two weeks’ paid leave at around the time of their child’s birth. However, pay is capped at a maximum weekly rate of £140.98 (or 90% of weekly pay, if lower).

Mothers, on the other hand, are entitled to receive 90% of their normal weekly earnings for the first six weeks of their maternity leave followed by a further 33 weeks at the flat rate of statutory maternity pay (which is the same as paternity pay). It is not uncommon for employers to top up mothers’ pay to 100% for the first six weeks and those who do tend also to enhance paternity pay to one to two weeks’ at full pay, particularly if they operate in a sector where other employers have set the trend.

It was the Government’s intention that the introduction of shared parental leave and pay in 2015 would help encourage more working fathers to take more time off after the birth of a child and, in turn, encourage working mothers to return to work.

However, the Working Families study showed that 25% of fathers are unaware that they can take shared parental leave and survey statistics from My Family Care and the Women’s Business Council show that take-up of shared parental leave is approximately 1%; with 40% of companies reporting that not a single father has taken shared parental leave since the regime was introduced.

There are numerous possible explanations behind the poor uptake of shared parental leave.  However, one of the key reasons is financial. Whilst mothers often have their maternity pay topped up by their employer, employers are much less likely to top up shared parental pay –  working families will therefore very often be worse off if the mother shares her leave with the father than if she alone takes maternity leave.

Indeed, a survey conducted by XpertHR in 2016 showed that only 25% of employers either enhanced shared parental pay or planned to in the upcoming year.

Fathers’ rights at work include:

  • the right to make a flexible working request;
  • the right to shared parental leave and pay;
  • the right to paternity leave and pay;
  • the right to take unpaid parental leave;
  • the right to take emergency unpaid leave to look after a dependant; and
  • the right to take unpaid leave to attend antenatal appointments.

It will be interesting to see if this trend changes. Whilst there is no definitive case law as yet on the point, there is certainly scope to argue that a policy only to enhance maternity pay and not shared parental pay is potentially discriminatory against men.

How employers can become father-friendly

So what can employers do to differentiate themselves? As outlined above, enhancing paternity pay and/or shared parental pay to match what is offered to mothers is one option. Of course, a deterrent for many employers will be the additional costs involved in offering enhanced benefits and not all employers can afford to do this.

A less costly but persuasive alternative could be to focus on increasing flexible working opportunities. Flexible working used to equate to working part-time but this is no longer the case. It can encompass working remotely from home (particularly appreciated now that commutes are often longer and more expensive), working different patterns of hours or job-sharing.

According to the TUC, the majority of employed fathers with young children (over 90%) work full-time. Yet the Working Families study showed that fathers want more flexibility in the workplace, so alternatives to the traditional 9-5 structure will appeal to many working fathers.

Going down this route can also offer hard costs savings for businesses, with employers who have embraced mobile working, reporting a reduced need for office space, decreases in travel costs and increased productivity.

Employee well-being is also likely to improve: a study by the CIPD shows that flexible workers are much less likely to report being under excessive pressure than people who don’t work flexibly, with 29% of flexible workers saying they are under excessive pressure every day or once or twice a week compared with 42% of those who don’t work flexibly.

However, take note, according to Working Families, twice the number of fathers compared to mothers believe that those who work flexibly are viewed as less committed and that working flexibly is likely to have a negative impact on their career. In addition, statistics show that 50% of fathers thought that taking shared parental leave would be perceived negatively by their employer.

If you do choose to put flexible working higher up your corporate agenda, ensure you promote it positively. To combat negative perceptions, consider putting in place a programme to help raise awareness of what’s on offer for both working fathers and mothers, potentially highlighting “real life” examples of where flexible working is working well within your organisation. This will also help show you are supportive of all those who elect to exercise these rights.

On the horizon

In response to the Working Families study, the Women and Equalities Committee has launched the Fathers and the Workplace Inquiry calling for evidence on issues such as how well fathers feel their current working arrangements help them to fulfil their caring responsibilities for their children and whether there are any employment-related barriers to fathers sharing caring roles more equally. A response to the inquiry is awaited.

In the meantime, the Women and Work All Party Parliamentary Group has published a report analysing the barriers faced by women returning to work after a career break of more than six months. The main recommendations include equalising statutory maternity pay and shared parental pay to encourage greater uptake of shared parental leave.

Several recommendations were also made to increase the uptake of flexible working – including, for example, introducing penalties for employers that limit flexible working where business performance would not be harmed. The report also recommended that the term “agile working” should replace “flexible working” to avoid connotations that the issue is only relevant to women and mothers working part-time.

Fathers are placing increased importance on an employer’s willingness to embrace family friendly ways of working. Employers who do the bare minimum are at risk of finding themselves less attractive to the ever-growing number of fathers who are looking to better balance work with childcare responsibilities and family life.

Savvy employers may, therefore, want to get ahead of the curve by doing more to actively support working fathers. Although this may have some short-term cost implications, these should be weighed against the potential long-term benefits of being able to recruit and retain the best talent.

John Smith is a solicitor at Burges Salmon LLP. Email: [email protected]. Telephone: 0117 9027735.

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