Employers and employees face a few pregnant pauses with the latest legislation, writes Alan Delaney
The final version of the UK government’s legislation on shared parental leave was placed before parliament last month. The changes will allow eligible parents to share statutory leave and pay for babies due on or after 5 April, 2015.
While the flexibility to share responsibility for childcare is to be welcomed, serious concerns arise from the complexity of the various regulations that have emerged to implement the new rights. This ought perhaps to have been avoided by a government looking to establish credentials as simplifying employment law and the burdens on business.
Draft regulations were published on 5 March, with the consultation period closing only two weeks later. At the time, significant concern was raised as to the cumbersome nature of how the new rights will work, in particular the notification requirements.
From next April, eligible parents have in effect the option to share up to 50 of the 52 weeks’ maternity leave. The first two weeks of such leave remain compulsory maternity leave, available only to mothers. The remainder can then be shared. Subject to eligibility, there will be entitlement to statutory shared parental pay of 39 weeks, less any weeks where statutory maternity pay has already been paid. Similar rights will come into force at the same time for adoptive parents looking to share leave and pay for children placed for adoption on or after that date.
To give a flavour of the complexity, employees will be required to provide a notice of entitlement and intention to take shared paternal leave, while curtailing maternity leave. Employees must also give eight weeks’ notice of each period of shared parental leave they wish to take. Leave can be requested as a block or within a pattern of discontinuous leave (for example, working every other week) although an employer need not agree to the latter. Up to three separate leave requests can be made by each employee and leave may be taken concurrently, overlapping or consecutively. There are also provisions dealing with variation notices to these notices.
Employers hoping for some simplification within the final regulations were left disappointed. Although an attempt has been made to simplify some of the drafting, the core provisions, including the complex notification requirements, remain.
This is all the more concerning for employers, as they grapple with the new regime and take steps to amend existing family leave policies. With the regulations due to come into force on 1 December 2014, requests to share parental leave are very likely to be hitting employers’ desks shortly thereafter. As such, it is vital for both employees and employers to know where they stand under the new system.
The government has published a summary of the new regime for employers (available at http://bit.ly/1oePQbq). While it summarises the key points, further guidance will be needed. The government plans to issue template notices which employees can use, and some help is also likely to be found from in-depth guidance being prepared by Acas.
As with much legislation, attempts to simplify the regime may follow in the wake of feedback from both employees and employers. In the meantime, it would seem unfortunate if legislation designed to make a positive impact on the lives of working parents gets off to a faltering start due to its complexity.
• Alan Delaney is an associate in the employment team at Maclay Murray & Spens LLP.