The new shared parental leave regime, which will affect parents of babies due to be born or placed for adoption from 5 April 2015, marks a bold move away from the current highly gender-based and inflexible approach to parental leave. It will also give parents much greater scope to agree between themselves what amount of leave will be taken between them.
The Civil Service has announced its intention to pay its employees who take shared parental leave (ShPL) at the same occupational rate as those who take maternity leave.
The move will help to promote flexibility for parents employed in the service around how they share childcare responsibilities and will go a long way towards breaking down the stereotype of childcare primarily being a female responsibility.
However, other employers will also need to decide whether to offer more than the minimum statutory rates of pay to employees who take ShPL for which 39 weeks of statutory pay equivalent to maternity allowance, currently up to £138.18 ($223.32, €174.20), is available for parents to share.
Most new fathers are not claiming additional paternity leave
When considering whether to enhance shared parental pay, an employer will want to consider the effect of enhancing pay on the take-up of leave.
In a survey of almost 350 businesses, conducted by Eversheds LLP, over two thirds of businesses (65%) claimed no new fathers in its organisation used the existing right to additional paternity leave in the last 12 months.
The availability of pay is likely to be a significant factor. However, the survey revealed only 20% of employers plan to extend enhanced pay, currently available to women on maternity leave, to both parents. This will clearly impact on the take up of shared parental leave.
Employers will also want to consider the possibility of legal challenge. Where an employer does not provide the same level of benefits for those taking ShPL as it does for women taking maternity leave, it is possible male employees may bring employment tribunal proceedings complaining this disparity in approach is discriminatory.
However, in light of World Health Organization advice that women should breastfeed for at least the first six months of a baby's life, an employer providing enhanced pay for up to six months of maternity leave should be in a good position to demonstrate its scheme is not discriminatory.
Enhanced benefits and equal terms for both men and women
If an employer does decide to provide the same benefits for those on ShPL as those on statutory maternity leave, it will have to give careful thought to the terms of, and conditions of entitlement to, such benefits. As ShPL need not be taken in one block it may be difficult to replicate a maternity scheme.
Clearly, if enhanced benefits are provided during ShPL, they must be provided to men and women on equal terms.
One curiosity of the ShPL and maternity legislation is that it appears to be possible for a woman to continue to receive statutory maternity pay (instead of Shared Parental Pay) while on ShPL.
Therefore, if an employer chooses to enhance maternity pay but not shared parental pay it should ensure the terms of its scheme clearly state any entitlement to enhanced maternity pay only applies during maternity leave. This will then avoid a situation arising where a woman taking ShPL is entitled to receive enhanced pay while a man receives only statutory pay.
This is likely to be an area of challenge and further legal developments.
Naeema Choudry is an employment partner at law firm Eversheds LLP.