The new regime entitling parents to share paid time off for child care came into effect recently.  The regime applies to employees whose baby was due on or after 5 April 2015, or who adopted a child on or after that date.  Leave can be taken in the first year after a child’s birth or adoption. The manufacturing work force is usually male- dominated, so this change to the employment law could have a big impact.

Employees will have the same rights to maternity leave and two weeks’ paternity leave as before, but, mothers can convert up to 50 weeks of their maternity leave and 37 weeks of their statutory maternity pay into Shared Parental Leave (SPL) and Shared Parental Pay (ShPP), and share this with their partner.

Additional paternity leave has been abolished. The new scheme gives parents significant flexibility: they can apply to take time off together or separately, in one continuous period, or discontinuously. Employers will be able to reject some but not all patterns of leave requested.

It is important for employers to understand the eligibility requirements. In general terms, the mother or primary adopter must be entitled to some form of maternity or adoption entitlement, have given notice to curtail it and must share the main responsibility for caring for the child with the named partner. The TUC estimates that around 40% of working parents will not be eligible because either the mother doesn’t have a paid job, or the couple do not meet the requirement of being with the same employer for at least 26 weeks by the end of the 15th week before the due date or adoption match.

The next hurdle is the different sets of notice that employees are expected to give – curtailment of maternity or adoption leave, notification of eligibility (at least 8 weeks before taking leave) and intention of either parent to take up SPL. This process will be more straightforward if employers have a clearly drafted policy and template notification letters prepared in advance.

Possibly the biggest issue facing employers is whether to offer enhanced ShPP and whether it is possible to offer only the statutory provision if they already provide enhanced maternity pay. First of all, the introduction of SPL does not affect existing maternity arrangements. The view of BIS (reflecting European Court of Justice decisions) is that the aims of maternity leave are to protect the mother’s biological condition during pregnancy and birth and to protect the special relationship between a woman and her baby. SPL is something different – focussed more on childcare. Government advice is that an employer can provide enhanced maternity pay but only statutory pay for SPL, provided that men and women on SPL are treated equally. 

However, some commentators are saying that there is still a risk of indirect discrimination claims, particularly where an employer has a very generous enhanced maternity pay policy. In those circumstances, it may be more difficult to justify a policy of providing only statutory pay for SPL. In the Tribunal case of Shuter v Ford Motor Company, Ford offered generous maternity leave provisions (up to 12 months’ full pay) but only statutory additional paternity leave provisions. The Tribunal held that Ford’s enhanced maternity pay was justified, as it assisted in recruiting women into the workplace and also enabled them to progress into senior positions. Mr Shuter’s indirect discrimination claim was not successful. Ford were able to provide detailed recruitment figures which was key to their ability to justify their policy. There could be further developments to follow but, for now, many employers are taking a “wait and see” approach and paying statutory pay only for SPL.

As well as considering the legal risk of a claim, employers should also think about what they are trying to achieve from a workforce relations perspective. If an employer does not enhance SPL then they are only implementing a father’s right to take time off work but not providing any real incentive to do so. Unless there is an incentive for fathers to take time off, take up is likely to be low.

The employment team at Bond Dickinson has prepared a set of policy documents and template notification letters to help you implement the new SPL scheme. Please contact Lisa Robertson or Clare Sample if you would like to discuss this or other issues surrounding SPL.