The last few weeks have seen a number of press articles on women’s pay and their under-representation at senior management levels. This was prompted by a study carried out by the Institute for Public Policy Research, which suggests that a key factor may be increasing childcare costs. This reinforces a culture of women, rather than men, being the primary child-carers and therefore being the ones to sacrifice pay/careers when difficult decisions need to be made.

Last week the Government released a consultation on its proposed new right to Shared Parental Leave (“SPL”) as part of its push to change this cultural imbalance by offering a mother’s partner near identical leave rights following the birth/adoption of a child.

Currently, Additional Paternity Leave (“APL”) enables a partner to take a maximum of 26 weeks’ leave before the child’s first birthday. However, this leave can only be taken after the mother has returned to work with some of her statutory maternity/adoption leave untaken. There are a number of problems with this current regime, not least in convincing your partner that, now she has managed to survive the turbulent first 6 months and the baby is sleeping and eating nicely, it is your turn to take over the child-raising duties and she must go back to work or (depending on your perspective) that he must now swap the refuge of his quiet, predictable and well-paid role in the office for the daily whirlwind of mess, noise, terror and daytime television which is staying at home with a new baby.

Under the new SPL proposals, subject to certain eligibility requirements, a mother will be able to end her maternity leave early and instead share up to 50 weeks’ parental leave and 37 weeks’ pay with her partner. The APL regime will be abolished to make way for this new form of leave. The parents may take this leave together or consecutively or one may take the whole amount. The leave period for each does not need to be continuous, so for example the parents may in theory take alternate months should they wish, and arrangements can change throughout the year. The parents must give their respective employers at least 8 weeks’ notice of their entitlement and intention to take SPL. Where the leave period sought will be for a discontinuous period as in the example above, there is a two week review period following the date that notice was given. During these two weeks the employer may consent to the application, suggest alternative dates or reject the proposal altogether in which case the employee may elect to take the leave in one continuous period. No doubt the employer will need some good objective reason for rejecting the leave pattern proposed.

Unsurprisingly, the new Regulations are very complex and span three separate draft Statutory Instruments, totalling 71 pages. The reality is that however well-intended, they are likely to be fraught with difficulties and complications. For example:

  • two weeks may just not be long enough for an employer to put in place arrangements enabling it to agree to a discontinuous pattern of leave, meaning it errs on side of caution and simply rejects the proposal out-of-hand. The prior notice requirements for maternity leave, early return from maternity leave and flexible working are all much longer, and that must be for a reason;
  • the employees’ plans may change throughout the year and so there is considerable uncertainty and inconvenience for an employer if an employee wishes to take his leave in a number of separate periods. This may well overburden staff who are required to provide frequent short-term cover for the employee on leave; and
  • there will be a need for both employees’ employers to agree a compatible leave pattern which may render the process convoluted, especially given the short two week review period. An enormous amount of to-ing and fro-ing can be anticipated.

Perhaps the biggest challenge is evidenced by the very low numbers of men taking advantage of the current APL regime. This suggests that as a society we may not yet be ready for the culture shift necessary to allow this new regime to achieve its purpose. However, it is certainly a step in the right direction. Whether the claimed benefits to society are outweighed by the time and effort which will be required to make SPL work is a separate question.