Family leave: an equal share

5 April 2015 will see a radical change to the way parents can elect to take time off work following the birth of their baby, or the placement of an adoptive child.

The new system of shared parental leave was introduced under the Children and Families Act 2014, with the intention of giving parents more flexibility in how to share the care of their child in the first year following birth or adoption.

In summary:

• The new scheme will apply to parents of children born or placed for adoption on or after 5 April 2015. From that date, the existing additional paternity leave scheme will be abolished; the existing system of maternity and adoption leave and ordinary paternity leave (two weeks’ leave around the time of birth) will remain in place.
• The period of shared parental leave available is 50 weeks, less the period of maternity or adoption leave already taken by the mother/adopter.
• Shared parental leave can be paid at the statutory rate for a maximum of 37 weeks, less the period of statutory maternity or adoption pay already received.
• In order to take shared parental leave, the mother/adopter must give a minimum of eight weeks’ notice to curtail her maternity/adoption leave. Either or both parents can then opt in to the shared parental leave scheme.
• Eligible employees may request a single or multiple periods of leave, and leave may be taken either consecutively or concurrently with the other parent. A minimum of eight weeks’ notice must be given in respect of each period of leave, with a maximum of three notifications per employee.
• Employees will be able to take up to 20 ‘keeping in touch’ days each during shared parental leave, in addition to any KIT days taken during maternity or adoption leave.

The new system of shared parental leave is likely to prove complicated to administer in practice, although it remains to be seen how popular it will be for employees.

Whilst it only takes effect from April 2015, employees who fell pregnant from summer 2014 onwards are likely to qualify for the new scheme, meaning that employers should start thinking about revisiting their existing maternity, adoption and paternity leave policies.

Employers who offer enhanced contractual maternity pay will need to consider whether to offer enhanced shared parental pay to an employee who opts to take shared parental leave. There is no requirement under the legislation for employers to do so, although they may risk a claim under the Equality Act 2010 if men taking shared parental leave are not paid an equivalent rate to women on maternity leave.

In a recent decision, an employment tribunal has considered whether an employer’s failure to pay enhanced paternity pay, when they had a policy of paying enhanced maternity pay, was discriminatory towards men.

The tribunal dismissed the employee’s claim of direct sex discrimination, but it was conceded that the payment of enhanced maternity pay was indirectly discriminatory towards male employees who took paternity leave. However, the tribunal was satisfied that the policy was justified since the employer (Ford Motor Company) could show that it formed part of a wider campaign to encourage the recruitment and retention of female staff in a traditionally male-dominated sector.

Whilst only a first level decision and not binding on other tribunals, this decision provides an interesting illustration of how tribunals might deal with the question of whether paying shared parental pay at the statutory rate amounts to indirect sex discrimination, if the employer pays enhanced maternity pay.

Employment law experts from Steeles Law will be providing a detailed overview of the new system of shared parental leave at the forthcoming HR Forum on 12 November 2014, from 2pm to 4.30pm at Dunston Hall.