Our thoughts on the world of employment law - and beyond.

Shared parental leave - good or bad?

In my view, the idea in principle of shared parental leave during the first year or so of a child's life is a thoroughly good thing.  In the months since the government's proposals on shared parental leave have been published, there has been some fairly negative press in the national newspapers surrounding the likely uptake of the new shared parental leave system, but that does not mean it is not a step in the right direction for both mothers and fathers. 

By way of reminder, since 2010 a father (or the spouse or partner (of either sex) of the child's mother), as long as he/she satisfies the eligibility conditions, has been entitled to additional paternity leave starting at least 20 weeks after and ending within 12 months of the child's birth.  Additional paternity leave is dependent on the mother returning to work, the idea being that only one parent is absent from the workforce at any one time and, for a period, in receipt of capped statutory pay.   

The new shared parental leave regime due to come into force for children expected to be born on or after 5 April 2015 significantly extends fathers' entitlements.  In short, employees who have 26 weeks' continuous employment at the "relevant date" (the end of the 15th week before the expected week of childbirth) will have the option of sharing parental leave for up to 52 weeks after the child's birth.  Similar to additional paternity leave, shared parental leave will only start once a mother who is entitled to statutory maternity leave has brought that leave to an end, but that can happen early on and parents will be able to take the leave together and/or in discontinuous chunks, subject to the agreement of the employer. There will also be an increase to the number of keeping in touch days available, which will be extended to up to 20 days per parent.       

Understandably, HR professionals have been concerned over the complexity surrounding administration of these arrangements and potential disruption to businesses.  This is not surprising, particularly given employees will have the option of requesting discontinuous periods of leave and may also ask to vary an agreed period of leave up to three times.   There is no doubt that the current draft regulations are complex, and in order for them to operate well in practice, it will be essential for the government to provide some decent guidance for employees and employers.   There will also, almost inevitably, be teething problems for employers surrounding the practicalities of these arrangements. 

In principle, however, I think the idea behind them is a good one.  In particular the acknowledgement that fathers can and sometimes do have a greater role to play in looking after a young child is important, both for women and men.  

I appreciate that in the vast majority of cases, often for cultural and social reasons, mothers will spend some or all of the first year after birth at home looking after a baby, usually without dad taking more than his two weeks' statutory paternity leave off from work (to which he has been entitled since 2003).    According to a 2013 TUC analysis of a BIS report into shared leave, just one in 172 fathers are taking advantage of additional paternity leave.  

I think, however, that is likely to change, albeit slowly.

The way our legislation has developed over time has involved a gradual increase in mothers' statutory entitlements, starting with the Social Security Act 1973, which provided for a statutory maternity allowance for women for an 18 week period, with no corresponding right to return to work.  This was followed by the Employment Protection Act 1975, which for the first time, gave women the right to return to work following a period of leave of up to 29 weeks.   Maternity rights have come a long way since then, but, we cannot forget that more than four decades have also passed.  One cannot expect cultural and social norms to change overnight.  I do not think therefore it is necessarily a legitimate criticism of the new statutory rights afforded to fathers that they are, so far, only taken up relatively infrequently.  Cultural change takes time, but in my view the legislative framework needs to lead the way (as indeed it did, to some extent at least, in shaping social norms which now make it acceptable that a mother may choose to return to work).  

This is important both to men and women.  Most parents still prefer, if possible, for their children to be looked after by a parent at home during at least some of their first year. The fact that until recently it has only been possible for a mother to perform that role while maintaining a right to return to work, has undermined opportunities for fathers to take on caring responsibilities during that period, even where it would otherwise have made financial sense for them to do so.   

Undoubtedly there is an ingrained expectation amongst many employers that mothers will take on primary childcare responsibilities in the early years of looking after children (including after return from maternity leave).  That is perhaps not surprising, given that, in the first year after birth, it has only been possible for women to take a lengthy period of statutory paid leave.  Research conducted by the Institute of Leadership and Management suggests that gender gaps in terms of salary and career progression are often associated with women taking time out to start a family.   That is obvious really, but there should at least be a route available to men to take time out if they wish to do so, at the same time as or instead of their partners. 

As gradually more men take that route (as well taking up flexible working), which I think will eventually happen, I hope there will be less expectation and assumption around who will take on the lion's share of childcare responsibility.  In turn, I would expect more women to be able to progress to senior roles.  Of course in many cases, mothers will continue to take on a greater share of childcare responsibilities, but it should not be the kneejerk assumption that they will do so (and nor should the fact that they choose to do so preclude them from career progression).   

I suspect also that in twenty or thirty years' time, looking back, we will be able to track a gradual extension of fathers' rights moving closer at least to gender equality, in the same way as we can track a gradual extension of maternity rights from the 1970s.   But that is doing a lot of crystal-ball gazing, so please do not hold me to it!

In short, therefore, the idea of shared parental leave is very good thing for men and women, and is rightfully at the top of the diversity agenda.  What is bad, perhaps, is the complexity of the draft regulations setting out those arrangements.  I do, however, remain cautiously optimistic that in time, an increasing number of fathers will begin to take on more childcare responsibilities, something I for one, would entirely support. 

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