New rights for working parents to take time off work to care for children have come into force. Shared Parental Leave (SPL) is available for parents of children born or placed for adoption on or after 5th April 2015. Article by Lee Jefcott, Employment Senior Associate at leading North West law firm Brabners.
The main features of these new rights have been widely publicised. However we have pored over the detail and uncovered potential skeletons in the closet. In no particular order.
1. Shared parental leave – just parents?– The right to take SPL arises in respect of birth mothers, biological fathers or the mother’s spouse, partner or civil partner. Partner is defined as someone who lives with the mother in an “enduring family relationship” but is not the mother’s child, parent, grandchild, grandparent, sibling, aunt, uncle, niece or nephew. This raises the prospect of applications for leave being made by persons other than biological fathers on the basis that they are in a relationship with the mother and intend to assist in caring for the child. It will be a difficult road for an employer to challenge eligibility.
2. Absent Fathers– What about the absent biological father? Are they entitled to leave in addition to the mother and mother’s spouse/partner? Assuming they satisfy the other eligibility criteria there appears to be no reason why the right to leave could not be asserted, even if the mother and partner have already made arrangements between them to take SPL. This could raise sensitive and difficult issues for employers.
3. What evidence can I ask for?– ACAS take the view that the employer should grant SPL and pay based upon the information provided by their employee. Employers can request a copy of the birth or adoption certificate and the name and address of the employee’s partner’s employer. Time will tell how many employers will take these steps and how many employers will feel comfortable in responding to external enquiries.
4. Going round the block– The total amount of SPL which can be shared is 50 weeks with both the mother and partner being allowed to take the leave at the same time or separately and either in one block or a discontinuous block. Discontinuous blocks could be for example: 4 weeks leave, 3 weeks back at work and another 4 weeks leave on a rolling basis. Employers don’t have to automatically grant requests for discontinuous blocks but how far can an employer go in discouraging such applications? We have already seen suggestions of bans in policies and financial incentives to take continuous blocks only.
5. Are we covered?– With the prospect of applications for discontinuous leave, and a minimum of only 8 weeks notification period to take the leave, together with the right to cancel or vary, expect difficulties in arranging suitable job cover especially in critical or customer facing posts.
6. Enhancing it– Shared parental leave is paid at the statutory rate – ca £138 per week. Where employers already enhance their maternity pay, will there be a discrimination risk if employers don’t enhance shared parental pay? Further, would mothers be able to take advantage of enhanced maternity pay and then go on to take enhanced shared parental leave pay, or should there be an offset? Suffice to say this is a fiendishly complex area of law and one that has not been fully tested.
7. Keep it in the family– Couples working together at the same employer may choose to take the leave concurrently. Provided that each applies for a period of continuous leave the employer cannot refuse the leave. This could create particular problems for small businesses.
8. Budget for the SPLIT– Both parents are eligible to use up to 20 keeping in touch days (known as SPLIT days) which could be used alongside shared parental leave to enable a return to work on a more flexible basis. Where these are granted these should be paid at the normal rate of pay. Employers granting these should consider their budgets carefully.
9. Return dates– Depending on the length of SPL taken, the employee has a right to return either to the same job or if that is not reasonably practicable, a job that is both suitable and appropriate for the employee to do. This mirrors the protection already in place for maternity leave returners but with these rights will now apply across the board to both male and female job returners.
10. A damp squib?– Despite widespread predications that take up of SPL will be low, a recent survey has shown that almost two-thirds of men and women would be interested in taking up SPL– a huge contrast to government estimates. According to the research, based on responses from 250 employees working for FTSE100 employers, 62% showed an interest in taking a period of SPL after the rights come into force.*
