Legal opinion: Changes to maternity and paternity leave

Visit thomaseggar.comThe Government is looking to create a society where “work and family complement one another”. A period of consultation on modern working relationships commenced on 16 May 2011, and will stay open until early August.

Modern workplaces

The Consultation on modern workplaces covers a range of issues that the Government thinks can be changed to give working parents greater freedom and flexibility to make arrangements to suit their families – a sentiment possibly not shared by the vast majority of employers. However, the Government also believes that implementing this cultural shift in working environments will benefit the economy and assist in meeting the growth targets forecast in the recent Budget. Its view is that a changed attitude to working families will give businesses access to a more efficient labour-market framework, in turn improving confidence and growth.

As always, the stated aim of reducing red tape and bureaucracy appears in the consultation paper, although quite how this is to be achieved remains to be seen.

Shared parental leave

The consultation paper proposes the sharing of what has always been known as “maternity leave” but could soon be “parental leave”.

Intended to come into force in April 2015, the proposals give greater leeway to parents to share their entitlement to parental leave and pay. This new system would replace maternity leave and absorb the current system of unpaid parental leave. This builds on the recent changes, which took effect from April 2011, allowing fathers to take up to 26 weeks’ “additional paternity leave” once the baby is 20 weeks old, providing that the mother has returned to work.

The proposal is to retain a period of paid maternity leave, in line with the European Pregnant Workers Directive (which currently provides for a minimum of 14 weeks, although this is expected to increase to 18 weeks). Beyond this, the Government is looking to convert what is currently 34 weeks of maternity leave into parental leave with the benefit of parental pay for 21 out of those 34 weeks.

The current system of two weeks’ paid paternity leave, which can be taken within 56 days of the date of birth, is to remain – keeping some elements of our current working families culture firmly in place.

An employer should be fairly familiar with this arrangement: an employee who has a baby can take an extended period of leave to look after and bring up the child in the first year of its life. The proposed change is that the presumption that this will be the mother will no longer be reflected in the statute books, although it might still be reflected in practice.

Flexible leave

Potentially harder for an employer to embrace is the suggestion in the consultation document that employees could take parental leave in shorter periods – for example, a mother may wish to return to work after the first 18 weeks and then use two days per week of the balance of her paid parental leave entitlement reducing her working hours. This seems unreasonably focused on the employee’s position, without any regard for the job they are employed to do. However, the consultation states that the employer’s agreement will be required for parents to take their paid leave in such a flexible manner. It would appear that the employer would have the right to insist that leave is taken in one continuous block. The Government plans to consult further on this point and we will have to wait to see what the final proposals involve. One issue could be that, if an employer allows an employee to take his or her leave as reduced hours, it could have a problem in later refusing to agree to a flexible working request on a permanent basis from that employee.

Esther Smith, partner, Thomas Eggar LLP

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One Response to Legal opinion: Changes to maternity and paternity leave

  1. Avatar
    Jinks 25 Apr 2014 at 2:33 pm #

    Beware – this 2011 article is way out of date! The draft Regulations on Shared Parental Leave came out in March 2014 for babies due on or after 5 April 2015.