In today's world of work, it's becoming increasingly common for more parents to share childcare and parental responsibility equally, allowing mothers to return to their career following the birth of a child.
This means workplace procedures for shared childcare are evolving, and it’s important for businesses to be aware of the relevant policies and laws when negotiating parental leave and flexible working for fathers. Here, Paul Lott of Hadrian HR explores Shared Parental Leave (SPL).
Businesses must first understand what paid paternity leave is, and how this applies to parents in work. Paid paternity leave of two weeks was first introduced in 2003 for fathers, and from 2011 extended paid paternity leave, called Additional Paternity Leave, has been available. In 2014, the Shared Parental Leave Regulations 2014 were implemented, and with effect from 2015, new parents have had the opportunity to take SPL.
The right to SPL applies to parents in work, including those who are adopting, same-sex couples, co-habiting couples, and couples bringing up a child together even if the baby is from a previous relationship. Under the rules the mother, or the partner claiming adoption pay, must still take the initial two weeks after birth, or when they are matched with the adopted child, or four weeks if they work in a factory, but the rest of the leave period can be shared between the parents in any way if they meet eligibility criteria. However, despite these positive attempts to encourage equality of treatment within working families, it is apparent that the introduction of measures such as SPL have not yet managed to fully achieve the positive aims that it set out to achieve. In fact, a recent report entitled Fathers and the Workplace’ produced by MPs on the Women and Equalities Committee has identified workplace policies have not kept up with the social changes in people’s everyday lives.
For businesses looking to commit to equality for working parents, it is important to not only be aware of SPL but also flexible working, and how a working father can be offered a part-time position to balance childcare with his spouse if he so wishes. Businesses should be conscious to advertise all open positions as flexible to parents, offer better workplace rights for fathers who are agency workers or casual workers, and arrange better paternity pay for working dads.
Another issue with SPL is financial circumstances. It is apparent that many couples who may like to utilise the availability of the leave cannot afford to, and in many situations the financial ramifications mean that there is no option but for the father to remain at work on full pay while the mother is on maternity leave.
Two cases, Ali v Capita Customer Management Ltd and Hextall v Chief Constable of Leicestershire Police, considered the issue of SPL, and could impact on this situation going forward, were referred to the Employment Appeal Tribunal (EAT). In both cases, the employers paid enhanced pay during maternity leave, but not during SPL, and male workers claimed that their employers had discriminated against them because of their sex by denying them the opportunity to take SPL on full pay.
The Judgement in the first of these cases was handed down by the EAT, in April 2018. It was determined that the first-instance Employment Tribunal had been incorrect when stating that the purpose of maternity leave was childcare, and instead the EAT stated the primary purpose of maternity leave, as established in the Pregnant Workers Directive, is to protect the health and wellbeing of a woman during pregnancy and following childbirth, whilst parental leave is for parents/ adopters to care for their child, and that the level of maternity pay was inextricably linked to the purpose of maternity leave.
The EAT identified that SPL was given on the same terms for both men and women, and therefore there was not direct discrimination when paying maternity pay at a higher rate, and instead that a higher rate of maternity pay fell within a provision contained within the Equality Act 2010, which allows for special treatment afforded to a woman in connection with pregnancy or childbirth.
On the basis the Hextall case follows suit, and subject to the outcome of any subsequent appeals, employers with similar policies will not be required to pay enhanced payments during SPL on the basis that similar claims of discrimination may be brought, and this will remain a discretionary decision. This outcome may therefore have the unintended consequence of acting as a further deterrent to the greater uptake of employees applying for SPL.
Whilst it is clear that attempts to remove the barriers preventing balanced treatment for working families continue to be made, including proposals to extend SPL to include working grandparents, there is still some way to go.
