Comment: The growing pains of shared parental leave

Despite the advancement in medical science, no one has yet developed a formula that would enable a man to conceive, and give birth to, a child. However, our lawmakers appear to have come up with something close to this in terms of employment rights, which will probably be welcomed by fathers of newly-born children but not by many of those trying to run a business.

Perhaps because of the election campaign, Shared Parental Leave, which became active law on 5 April, has largely gone unnoticed. The thinking behind the legislation was to permit parents to more equally share the responsibilities of the care of a child new to the family either through birth or adoption.

The scheme is optional and the default position on the birth or adoption of a child will continue to be 52 weeks of maternity leave (39 weeks paid) for the mother, as will compulsory maternity leave, which lasts for two weeks from the day of the child’s birth. However what has changed – and is of considerable significance for employers – is that the parents of the child will have the option of sharing this leave, even if they are employed by different businesses.

The main bugbear for bosses is not the sharing of leave per se but the ability of the new parents to ‘chop and change’ the periods of leave with, some might argue, minimal notice. Administratively and financially, this is likely to be a nightmare for businesses at both end of the spectrum. For those with large staff numbers the problem will be the frequency of claims; for SMEs it will increase uncertainty when costs mean staffing levels are at a minimum along with the difficulty in (and cost of) engaging stand-in workers at relatively short notice.

The nuts and bolts of the scheme mean there will be up to 50 weeks of parental leave and up to 37 weeks of parental pay available for eligible parents to take or share – in other words, the entire statutory maternity leave and pay periods, excluding the compulsory maternity leave period of two weeks. Therefore mothers will have the option to end their maternity or adoption leave, or commit to ending it at a future date, and share the untaken leave with the other parent. This means mothers and primary adopters can return to work before the end of their leave without sacrificing the rest of the leave that would otherwise be available to them. This is likely to be a common practice in marriages or relationships where the female earns more than the male.

It is also worth mentioning that shared parental leave can be taken either consecutively or concurrently, as long as the total time does not exceed what is jointly available to the couple.

The one compensation for employers is that the pregnant mother is required to serve a curtailment notice at least eight weeks before the date on which she intends to leave (or pay entitlement to end) and lodging her intention to take shared parental leave. And it appears the periods of SPL any employee can take during their working lifetime, will be limited to four.

However this seems like small beer compared to the enormous increase in costs and administration issues facing employers. And if they don’t get it right there is the added danger of opening themselves up, among other things, to potential claims for constructive unfair dismissal – overturning, to some extent, the spirit of earlier legislation by the previous Coalition which has led to a big reduction in such challenges through employment tribunals.

• Dawn Robertson is a partner with Young & Partners, business lawyers.