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 and is subject to certain eligibility requirements. Leave can be taken in the first year after a child’s birth or adoption.
Eligible parents may share a period of up to 50 weeks of shared parental leave (SPL) and 37 weeks of shared parental leave pay (ShPP). The basic principle is to give 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.
SPL operates alongside existing maternity and adoption rights which will continue to apply, albeit with some changes. Partners are also entitled to ordinary paternity leave, but additional paternity leave has been abolished. This process will be more straightforward if employers have a clearly drafted policy and template notification letters prepared in advance.
To enhance or not to enhance
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 condition during pregnancy and birth. SPL is something different – focussed more on childcare.
Government advice is that an employer can provide enhanced maternity pay but only need provide 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 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. Ford were able to provide detailed recruitment figures which was key to their ability to justify their policy.
The bigger picture
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.
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.