Neil Maclean: Parental leave concern for employers

Shared parental leave will become a concern to some employers. Picture: Phil Wilkinson
Shared parental leave will become a concern to some employers. Picture: Phil Wilkinson
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NEW rules a big change to time off for parents, says Neil Maclean

Families in Scotland, England and Wales will soon have greater flexibility when deciding who will take time off work to look after their new baby. Mothers will be able to choose to share up to 50 weeks of maternity leave and 37 weeks of pay with their partner. The leave must be taken before the baby’s first birthday and parents can be off work separately or together.

The new rules come into force from 1 December, 2014, and will generally apply to babies due from 5 April, 2015. This means the rules will affect families who fall pregnant from July 2014. Perhaps the most unexpected aspect of the shared parental leave regime is that employees can each take at least three separate blocks of leave and return to work in between each block if they wish.

This is a big difference from the current maternity and paternity leave rules where time off must be taken in one continuous period. Blocks of shared parental leave can be anything from one to 50 weeks long. The ability to take patterns of leave offers great flexibility to families but could be difficult for businesses to manage.

The partner who shares the leave can be the child’s father, the mother’s husband or civil partner at the time of the birth, or a partner who lives with her and the child in an “enduring family relationship”.

Where there is more than one eligible partner (for example the father and a new partner), the mother can choose who to share her leave with. Leave cannot be shared with anyone else who will help to care for the child, for example, the baby’s grandparent. After ending maternity leave early, mothers can also take shared parental leave.

In addition, from December 2014 partners will be allowed unpaid time off to attend two ante-natal appointments. Employees will also be protected against suffering a detriment if they request or take shared parental leave (or if their employer thinks they may do so). There is a mirrored scheme for adoption and surrogacy.

These new arrangements throw up some big questions:
• How many employees are likely to take the leave?

The government estimates that the take-up will only be somewhere between 2 per cent and 8 per cent. However, it remains to be seen how the leave will be used as this could depend on a number of factors including the extent to which employers offer enhanced benefits. 
• Do employers need to offer enhanced maternity pay to employees on shared parental leave?

The government has suggested that employers currently offering women enhanced maternity pay will not need to offer enhanced shared parental pay. However, there is European case law which could support a sex discrimination claim against an employer who doesn’t offer the same enhanced benefits during shared parental leave as it does during maternity leave. This issue is likely to remain unclear until there is a legal challenge. 
• How will people react to requests?

Perhaps one of the most immediate risks facing businesses is how other employees will react when a man gives notice to take a significant period of time off to look after a baby. If eyebrows are raised or comments are made to him (or behind his back) that wouldn’t be made about a woman taking maternity leave, then there is a real risk of sex discrimination claims.

This is potentially the most significant change to family leave arrangements since the introduction of maternity leave in 1975 and all employers need to be prepared; they should review their approach to enhanced maternity pay (if offered), update their policies and practices to accommodate shared parental leave and educate managers so shared parental leave requests are handled appropriately.
• Neil Maclean is a partner with Shepherd and Wedderburn