The new regime of shared parental leave (SPL) will apply to babies due on or after 5 April 2015. With only six months to go, it doesn't take a maths genius to work out that parents announcing their pregnancies now (assuming they do so at the usual 12 week mark) will be eligible to take SPL. With the first leave requests potentially being made in early spring, employers could start receiving queries about SPL any time now, if they have not done so already. So, are you ready?
For the sake of simplicity, this note will refer to mothers and fathers, although SPL also applies to adoptions and same-sex couples.
We have already provided commentary on SPL: it is a completely new concept of family leave, intended to give working parents greater flexibility over their entitlement to take time off to care for a new baby. It replaces additional paternity leave, which turned out to be a bit of a damp squib (take-up was only 0.6%) and will be abolished on 5 April.
In summary, SPL provides for the following:
- The default position is that mothers will be entitled to 52 weeks' maternity leave in the same form as it is currently. SPL will only apply if the mother opts to bring maternity leave to an end early.
- Fathers continue to be entitled to two weeks' ordinary paternity leave.
- Up to a maximum of 50 weeks SPL can be shared between two parents.
- Up to a maximum of 37 weeks statutory pay can be shared between two parents.
- Parents can choose to take consecutive or concurrent periods of leave.
- Parents can take leave in a single block or in discontinuous blocks.
- Each parent must individually satisfy certain eligibility conditions and have a co-parent who also satisfies certain eligibility conditions.
- Employees may give up to three notifications of an intention to take SPL, giving at least eight weeks' notice each time.
- Requesting SPL and responding to such requests is governed by a complex system of notice requirements, variation notices and declarations.
While the concept of sharing leave is in principle straightforward, the technical practicalities of managing SPL are unfortunately complex. It is impossible in this article to go into detail about each and every aspect of SPL - instead BIS has published a 56-page Employers' Technical Guide which is worth getting your head round. What I will try to do is highlight a few practical considerations which employers should bear in mind when planning their approach to SPL:
As a minimum, it is advisable for employers to prepare a policy on SPL, setting out the eligibility criteria, employees' entitlements and what is expected of them in terms of notice requirements and evidence.
Existing maternity and ordinary paternity leave policies can be retained in their current form. However, policies on additional paternity leave should be scrapped.
2. Administrative matters
It is perhaps an inevitable consequence of the greater flexibility provided by SPL, that it will bring with it an increased administrative burden on employers. Getting to grips with the mechanics of administering SPL is likely to involve a consideration of the following:
- how to ensure that the relevant notification requirements have been complied with, including any deadlines;
- how to check the eligibility criteria are met, particularly given that both parents are required to meet certain conditions to be eligible;
- how to monitor the amount of leave an employee and their partner have taken to ensure that cumulatively the maximum amount is not exceeded (particularly because a second employer is likely to be involved);
- whether any adjustments are required to payroll systems to deal with employees taking discontinuous blocks of leave during which their pay may fluctuate;
- whether to ask for the name and address of the non-employee's employer (NB: there is no requirement to contact the other employer, so this information is unlikely to be necessary in the majority of cases); and
- what training and support is needed for HR teams / managers in terms of understanding the new arrangements and how to manage them in the workplace.
The answers to these questions will inevitably depend on the size of the workforce and potential take-up of SPL among staff. Since the latter is at this stage hard to ascertain, it may be sensible to keep processes under review while SPL beds in.
3. Educating employees
Given the complexity of the notification and eligibility requirements, employers should expect some confusion among employees about what they are allowed to do and how they should go about doing it. Employers may want to consider ways of assisting employees to understand their new rights and ultimately take advantage of them. A clearly drafted policy, as mentioned above, may be sufficient. Additional possibilities include a short guidance or question and answer booklet and/or template notice and other documents for employees to use when making requests. Employers should encourage employees to give them as much notice as possible of leave requests so they have enough time to consider and plan for them.
4. Dealing with requests for discontinuous leave
SPL is designed to be flexible. Unlike maternity leave, SPL can be broken up and taken in discontinuous blocks (of at least a week). For example, a parent could take a month's leave, work for a month and then take another month's leave etc. In theory, the potential combinations are endless!
SPL entitles employees to take up to three separate blocks of leave. If employees request these separate blocks of leave in different leave notices employers have no right to stop the employee from taking them as discontinuous periods of leave.
However, if employees request discontinuous leave within one leave notice or seek to split leave into more than three blocks, they can only do so with the agreement of an employer. In such cases, it is open to an employer to agree to the employee's request, propose alternative dates or refuse the request altogether. There is a two week window in which employers can consider such requests for discontinuous leave. If no agreement is reached by the end of that period, the employee will be entitled to take the total amount of leave requested in a single block.
Employers should consider what approach to take to requests for discontinuous leave within a single notice. This is likely to necessitate a consideration of how to provide cover for what may potentially be more employees absent from work, albeit for shorter periods. It should be remembered that unreasonable or inconsistent refusals could result in grievances from employees and, at the extreme, possible claims for constructive dismissal and/or discrimination. Dealing with requests on a case by case basis and ensuring that any refusals can be justified and are properly documented is therefore advisable.
5. Enhanced shared parental pay (ShPP)
One of the most hotly-debated topics about SPL, among lawyers at least, concerns enhanced ShPP. What is clear is that if enhanced ShPP is paid, the same amount must be paid to both mothers and fathers taking SPL to avoid the risk of discrimination. Less clear is whether employers who currently offer enhanced maternity pay will have to provide the same level of enhancement for ShPP.
The Government's view is a firm no. In their guidance, they are clear that companies may continue to offer benefits to women only when on maternity leave without the risk of discrimination, on the basis that women on maternity leave have special protection as a result of their biological position as the mother which can justify any difference in pay. The Employment Tribunal decision in Shuter v Ford Motor Company Limited, recently considered by Claudia Rooney, is likely to be helpful in supporting this view (although a note of caution needs to be exercised in relation to this case as it related to additional paternity leave pay; was very fact specific and one of the key issues turned on Ford's ability to justify the indirect discrimination caused by its policy – ie one of the aims of its enhanced maternity pay policy was to recruit and retain women in a male-dominated workforce).
However, there is by no means certainty on whether offering different levels of pay for maternity leave and SPL will be discriminatory. In particular, since under SPL a woman will be able to share all but the first two weeks of leave, the argument that she needs special protection on maternity leave on the face of it loses some of its strength. At this stage, it is a matter of watch this space but I would not be all that surprised if the principle was challenged at some point. Having said that, in circumstances where the Government has forecast that only 2 – 8% of employees are likely to take up SPL, the risks involved will hopefully be relatively low.
Potential discrimination debates aside, employers still need to consider what, if any, enhancement they are going to offer parents on SPL and for how long. There are clearly considerations on both sides of the enhancement argument. On the one hand, offering enhanced pay for maternity leave but not SPL is extremely likely to deter the take-up of SPL. There will also be employee relations issues to this approach, particularly for employers wishing to promote themselves as family friendly. On the other hand, there are cost implications to consider. For example, employers with a high proportion of male employees may find themselves paying more since they may not benefit from a corresponding drop in maternity pay.
If cost issues are a concern, one option might be to reduce the amount of enhanced maternity pay offered (either to all staff or only new joiners) to fund the cost of offering enhanced ShPP. Another might be to offer a limited enhancement to ShPP and review after a period of time once take-up levels can be better assessed. As ever, the approach taken by employers will very much depend on the nature of their workforce and their overall approach to family friendly policies.
6. Cultural change
The low take-up of additional paternity leave has shown that the stereotypical view of childcare – i.e. that it is the mother, and not the father, who takes time off work to look after children – still persists in modern workplaces. If SPL is to have a greater impact, realistically a shake-up in cultural and workplace attitudes is needed. This will undoubtedly take time. However, employers can make a start by explaining to managers that the same sensitivity shown to women taking maternity leave needs to be shown to both parents taking SPL and by explaining to employees that taking SPL is supported and will not have a detrimental effect on job and career prospects.