Shared parental leave plans leave unanswered questions

After a long wait, the shared parental leave proposals are about to become law. Yet take-up by new fathers is unlikely to be big, while the proposals still leave much unclear, reports John Charlton.

In the sharing and caring world that those politicians keen on social engineering want to build, fathers of newborns will be falling over themselves to stay at home to look after baby while mum goes back to work. Back on Earth, that scenario is some way off – and is unlikely to arrive anytime soon, despite the planned introduction of Regulations on shared parental leave in 2015.

Key legal responsibilities

According to Pam Loch, managing partner at Loch Associates, the key legal responsibilities that shared parental leave will impose on employers are:

  • ensuring that parental requests made by men and women are treated equally;
  • ensuring that both parents can return to the same job if they have taken less than 26 weeks combined leave;
  • ensuring parental leave pay structures are correctly implemented;
  • preventing sex discrimination against men who seek to exercise their right to take parental leave; and
  • preventing sex discrimination of women during a recruitment process.

These will be formulated once the Children and Families Bill, which contains clauses covering shared parental leave, receives Royal Assent – probably in late March. Given that the Shared Parental Leave Regulations will be effective from 5 April 2015, the sooner the finalised document is released the better, as employers may face requests for shared parental leave from mid to late autumn this year.

However, unless statutory paternity leave pay rises significantly it is very unlikely that fathers of newborns, or newly adopted children, will be rushing to spend more time bringing up baby.

Reasons for poor take-up

Fathers have had the right to take 26 weeks’ additional paternity leave since April 2011, when additional paternity leave pay was set at £128.74 per week. It has since been raised to £136, so it should come as little surprise that take-up has been low.

The TUC estimates that just one father in 172 takes additional paternity leave, based on an analysis of 285,000 eligible fathers. However, the research found that nine fathers in 10 do take time off during the first two weeks after the birth of their baby. The TUC says employers “nearly always” top up paternity pay during this fortnight.

The TUC has called on the Government to amend the Children and Families Bill to raise paternity pay to 90% of average fathers’ or partners’ earnings for six weeks – a call so far unheeded. Nevertheless, employers will face a more father-friendly regime once the Regulations come into force, even if take-up is low.

What is being proposed

The proposals envisage the following:

  • Shared parental leave will cover 52 weeks from the child’s birth.
  • Employees must notify employers at the end of the 15th week before due date if they intend to take any period of shared parental leave.
  • If adopting, this date must be within seven days of a child being matched.
  • Parents will have the right to take 26 weeks off and return to their existing role even where the leave is not taken in one block.
  • Employees can make three notifications of taking shared parental leave.
  • Parents must give eight weeks’ notification of taking a block of shared parental leave.
  • Workers may request up to three changes to already agreed blocks of shared parental leave.
  • Working mothers will have the right to change their minds about sharing parental leave, and will have six weeks to notify their employer that they will take maternity leave only.
  • Each parent on shared parental leave will get 20 keeping-in-touch days in addition to the 10 keeping-in-touch days that women on maternity leave have already.

Of course, employers will have to monitor the progress of the proposed Regulations, as they may change before coming into effect.

Business concerns remain

Tim Thomas, head of employment policy at the manufacturers’ organisation EEF, says he feels “positive” about the shared parental leave proposals – although he has some reservations about “the business planning aspect".

"Some parents will be taking shared parental leave in discontinuous blocks. That is the most significant headache," he says. “Also, giving parents the right to revoke a shared parental leave request may cause planning problems.”

He says that EEF members are “positive about embracing” shared parental leave and that the organisation pressed the Government to introduce the shared parental leave form (SHPL1) that will contain the requested dates of any leave, adding that “that’s a positive”.

Although it says it supports the shared parental leave proposals “in principle”, the Federation of Small Businesses says the Government must clarify what the rules will be if an employee on shared parental leave is made redundant and the implications of shared parental leave for employers with occupational maternity schemes.

Alexander Ehmann, deputy director of policy at the Institute of Directors, says: “The principle of shared parental leave is something we’re in favour of, if it can work without being a burden on business.

“However there are one or two specific issues that concern us. For example, that after having agreed packages of shared parental leave, employees can, unilaterally, ask employers to redesign these packages on two occasions, is most unwelcome.”

He adds that the shared parental leave proposals “are asking employers to exercise a lot of judgment. Every decision on what to do or not to do has knock-on effects for a second employer. And giving employees three bites of the cherry (in taking blocks of shared parental leave) strikes me as overprotective of the employee.”

Low pay levels will affect take-up

Of more concern to the TUC is the low level of statutory paternity pay, with the union’s senior equalities officer Sally Brett saying: “Unless the Government provides better rates of statutory pay, few fathers will take up this extra leave.

“We are disappointed that the Government failed to implement a new right to return to the same job if someone uses more than six months of the leave. This would have prevented a key cause of pregnancy discrimination where mums returning to work find their job has changed.”

Trade union Unite takes a similar view, especially with regards to low parental leave pay and strengthening the right to return to the same job “regardless of the length of leave”. In a statement, it said that the Government should, in particular, help parents of newborns who have more than one employer.

“They could be eligible for shared parental leave with one, but not all employers. Many of our members in low-paid work have multiple jobs, which makes arranging blocks of shared parental leave even harder," the statement says.

“The Government should include rules [in the Shared Parental Leave Regulations] and guidelines to assist in these situations.”

Clear legal problems

Employment lawyers can already see some issues with the proposals.

Kate Hodgkiss, a partner at DLA Piper, says the keeping-in-touch days regime needs clarification “in terms of how these might be applied and what the appropriate rate of pay might be".

“For example, could the keeping-in-touch days be used in a block within the middle of a period of leave?" she asks. "This would, in practical terms, achieve two separate and shorter periods of leave which, if applied for initially, the guidance appears to suggest might be a disjointed pattern of leave that an employer could reject.

“Where employers have identified uncertainty of when and how leave can be taken as being a potential disadvantage to the business, a further lack of clarity regarding the use of such days is an additional concern.”

Sarah Parkin, an associate at Hogan Lovells, believes “the very concept” of splitting leave and pay between parents taking shared parental leave will be very difficult for employers – especially small businesses – to administer in practice.

She says: “The ability for employees to take up to three different blocks of leave will be difficult for employers to plan and arrange suitable cover around. Another tricky issue is the approach to pay and whether or not employers should pay enhanced pay for periods of shared parental leave. There is a lack of clarity so far on this point.”

Practical issues remain

Of course, employers will want clarity when the Shared Parental Leave Regulations are published, but there are likely to be grey areas that can only be dealt with in practice.

Pam Loch, an employment lawyer and managing partner of Loch Associates, identifies three areas of concern: tracking leave and pay, especially where parents work for different employers; tracking notice periods and changes to leave requests; and disciplining staff for abuse of shared parental leave rights.

This also concerns Julian Cox, a partner at Fletcher Day. He thinks there is plenty of scope for abuse given that shared parental leave entitlement will mostly be shared between parents working for different employers.

“The employer will need to rely on information from the employee as to how much leave their partner has already taken,” he points out. However, he believes that there will be more consultation on the issue this year.

Cox adds that there are many uncertainties as to how the shared parental leave regime will operate. These include whether or not an employer has the right to refuse particular shared parental leave patterns, “for example, where an employee requests to take alternate weeks off”. And whether or not employers may insist that an employee takes shared parental leave in a single block.

“Smaller employers in particular are concerned that if such a right of refusal is not provided, it may be difficult for them to organise effective cover for an employee taking shared parental leave,” he says.

Finally, Loch points out the proposals say nothing about managing the right to return to the same job if it no longer exists for valid reasons, such as reorganisation.

“It remains to be seen if this scenario will be legislated for or whether case law will determine it," she says. "Arguably, this should be handled in the same way as under current legislation for a woman on maternity leave.”

More on parental leave procedures in XpertHR’s Employment law manual.

One Response to Shared parental leave plans leave unanswered questions

  1. Avatar
    Emma Harraden 28 Feb 2014 at 9:46 am #

    Great article