2015 will see a continuing number of changes to rights for parents for which employers need to understand, adapt and plan. In the first part of this article, we look at how aspects of the Christmas story might be treated under new laws relating to Shared Parental Leave ("SPL"). The New Year is the time for lists: so in part two we give you some practical "to dos". Compliments of the season and Happy New Year to all our readers, clients and colleagues.
Travellers and strangers: qualifying service
There is limited scope for "benefit tourism": recent travellers to these shores will not qualify for SPL unless the mother has 26 weeks' continuous employment with the UK employer ending with the 15th week before expected birth. To have the right for each partner to share leave, their spouse/partner must have been employed or a self-employed earner for 26 of the 66 weeks immediately before birth and also have continuity of employment. As given it, is not likely there will be a large take-up of the extra benefit of SPL by men. Currently it is estimated that only some 10% of fathers take more than two weeks' paternity leave, so employers may not experience issues very frequently unless they take measures which encourage more fathers to take leave – notably, increase pay. That said, if a woman earns more than her partner, and only SPL rates of pay are offered by the employer, it makes economic sense for her to return to work and her partner take leave.
The "Census" and records
The authorities – employers - can require identity checks. That means a copy of a birth certificate naming the parents, and details of the employment of their employee's partner. This enables an employer to check that a parent is who they say, and that a couple is not playing fast and loose with shared benefits (for example, taking more than their allowed leave in total).
Controls can be imposed in the process: employers will require a "maternity leave curtailment notice" if a mother wants to end her maternity leave and a "notice of entitlement and intention" which gives an initial, non-binding, indication of paid of shared leave that an employer could request. Then there is a "period of leave notice" detailing the start and end date of each period of shared leave that the employee wants to request from his or her employer.
An employee is only entitled to submit three notices specifying discontinuous periods of leave (or variations of notice) per pregnancy. If an employee requests more than three discontinuous blocs of SPL employers are entitled to refuse the additional requests. Some may want to discourage multiple periods of leave by setting that out as a policy. Other may decline on a case by case basis. There may be other employers who want to positively encourage taking of longer blocs by offering additional incentives (more money) for longer periods of continuous leave. Provided there is no differentiation on the basis of the sex of the parent wanting to make that request, this seems lawful.
Surrogacy and adoption
There are a host of specific differences in rights relating to surrogacy and adoption which will start to fall more in line with general parental rights in 2015. Under the Children & Families Act, it is expected that in 2015 a woman who has a child by a surrogate may be able to take leave equivalent to maternity leave and adoption leave if she obtains a parental order. Parents who are adopting children are able to take 26 weeks' ordinary adoption leave and 26 weeks' additional adoption leave. But this applies only where there is an agency involved and not for step-parenting, private adoption or fostering (unless an agency has issued a matching adoption certificate). Adopters will need 26 weeks service in order to qualify for rights equivalent to those under the SPL arrangements.
Modern families may involve more than two parental roles but SPL rights relate only to those who have could certify "care" of the child. So an absent biological father will not be able to ask his employer for SPL.
Mothers are special: implications of enhanced pay
The SPL regime entitles parents to share periods of leave. There is no requirement for it to be enhanced, so that unless other arrangements are made SPL is paid at 90% of base pay for the first six weeks and then the equivalent of statutory maternity pay at £138.18 per week for the remaining 33 weeks.
Under established law it is permissible to pay a woman enhanced maternity pay and not a man enhanced paternity pay: this rates to the special status of a carrying mother and health and safety rights. According to the ECJ, the purpose of maternity leave is to allow a period of recovery from childbirth and bonding with the child free from the pressures of work; the argument goes that, in contrast, the purpose of shared parental leave is caring for the child (although it is hard in practice to see how caring and bonding can easily be split, given a mother must also care for her child on maternity leave). If an employer were to say that shared parental pay for a woman was enhanced, but not that for a man, this would probably be unlawful discrimination. Ways of framing the behaviour of employees to suit philosophical aims to their employer could include providing enhanced pay for the first period of leave – whichever parent takes it – and then less for later. But this might risk arguments that since it is women who are more likely to take the earlier leave in the period after child birth the enhancement is indirectly discriminatory against men. We seem to be in a "wait and see" period whereby most employers are simply observing the minimum pay requirements. Some are planning to implement a "shared pot" so that there is enhancement, payable at a flat rate and not at a percentage of pay, so that it is transparent. This seems to be the approach which provides for enhancement and is least likely to generate discrimination claims.
Planning for parents: tips for 2015
- Take time in January to understand the new laws: there are changes to paternity leave, adoption and surrogacy rights, shared parental leave and shared pay.
- For an interactive tool to see whether an employee is entitled to leave or statutory pay on the birth or adoption of a baby click here.
- Understand your market: consider what competitors are doing, and your own values, in designing rules around notice or SPL enhanced pay.
- Take advice: there are plenty of opportunities to create risks of indirect or direct sex discrimination so talk through the implications of your plans.
- Record keeping: if you are going to keep information about employees and their partners, are you comfortable that your data protection rules stand up to scrutiny?
- Do not abandon all past practices: plenty of rules about keeping in touch days, maternity notification, and rights to be contacted still apply. Much of the past remains but you need to overall new features.
- Contact individuals who are specifically affected by the new rights e.g. relating to babies expected to be born or placed for adoption from 5 April 2015 onwards.
- For the wider workforce, review and circulate amended staff handbooks and employee intranet policies to provide an accurate and up to date description of rights and the documentation you need.