The new legislation applies to babies born or adopted on or after 5 April 2015 and is designed around the modern family. Mothers and fathers will be able to share up to 50 weeks maternity leave, taking their leave in interchangeable blocks separately or together.
There is nothing particularly new or radical about the concept of parents sharing the pot of maternity leave. Since 2011, fathers have been entitled to take ‘additional paternity leave’ of up to 26 weeks which is off set against the mothers balance of maternity leave.
That said, employee take-up of additional paternity leave has historically been extremely low. The new shared parental leave is potentially more attractive for employees, given that in some circumstances it will be paid, depending on the timing of the leave and the employers benefits package. In addition, parental leave can be taken in multiple blocks of as little as a week, during which fathers can flex their leave by dipping in and out of employment.
This obviously presents an organisational and administrative nightmare for employers who will be forced to bear the costs of arranging cover and dealing with potentially complex pay calculations.
Currently, employers are experiencing the first trickle of questions from expectant parents with babies due in the Spring whilst also grappling with how the new regulations will work in practice. How will workloads be managed if both mother and father are able to dip in and out of active employment over the course of a year What changes are required to employers existing benefits package What impact will this have on the culture of their businesses
Male dominated industries, which have previously enjoyed a tepid take up of paternity leave, may be forced to steel themselves for the long term absence of a significant proportion of their workforce and the issues presented by employees who have suffered a year off the field e.g. picking up work which has stalled and the impact on their career progression.
It seems probable that larger businesses will be better equipped and resourced to deal with these issues, including bearing the costs of hiring temporary cover and greater sophistication in managing requests and adapting to the changes. Smaller businesses, which do not have the luxury of a designated HR department or a locum budget, stand to lose the most.
Over the coming months, businesses should review and audit their current maternity and paternity packages to ensure they are legally compliant. Businesses which offer enhanced maternity pay to female employees but only statutory paternity pay to males, risk claims of sex discrimination brought by fathers seeking equal enhancements. Recent case law would suggest that employers will be able to defeat such claims at the Tribunal, however other risk averse businesses have responded by shrinking their maternity packages to statutory levels.
Businesses should separately consider updating their HR policies and procedures to include a shared parental leave policy which sets out the rights and entitlements of employees. Such policies should typically include a process for notification of a wish to take parental leave, a declaration of eligibility, a process for booking the leave, varying the leave and ultimately returning to work.
ACAS has helpfully published a detailed guidance note and template letters to assist employers in this regard. In conjunction with policy updates, directors, managers and other key personnel should ideally be familiarised and trained on the legal changes so as to be able to respond appropriately to requests, particularly from fathers requesting long periods of absence from work to adopt the primary care role for their children.
Forward thinking businesses will view the regulations as a positive step towards workplace equality and modernisation. It is difficult to criticise the overall objective of facilitating flexibility for the modern family and the fathers right to adopt the role of a primary or dual carer. Inevitably this will come at a cost, however, it is perhaps a cost worth bearing.
Hannah Ford, Senior Associate and Hannah Lunn, trainee solicitor at Stevens & Bolton LLP.