The right to shared parental leave came into effect just over two years ago.
It was heralded as a way for parents to share what had previously been a mother’s right to a year off to care for their child.
We anticipated that takeup would be low, and so far, that has turned out to be the case. But as the scheme becomes more established, and with the continuing push for equality at work, shared parental leave – and an increasingly balanced commitment to family life between parents more generally – will become more common.
However, many employers remain unprepared.
This was highlighted in a recent decision in the Employment Tribunal. Capita was held to have directly discriminated against a male employee who says he was deterred from taking shared parental leave. He claims he was told that he would be entitled only to statutory pay if he took more than two weeks’ leave, whereas female employees on maternity leave would be paid more.
Although this decision very much turns on its own facts (and is being appealed), it reminds businesses of their duties towards all new parents – and of some potential pitfalls.
What new parents are entitled to
The Shared Parental Leave Regulations entitle parents to share up to 50 weeks of leave on the birth or adoption of a child. These 50 weeks should follow two weeks of leave that a mother must compulsorily take after the birth of a child.
The right is flexible. Parents can split the time as they like, taken consecutively, or at the same time as each other, or in sequence in up to three chunks.
Parents who take shared parental leave are entitled to up to 37 weeks of statutory pay (a weekly rate set by the government).
This is all pretty straightforward. The difficulty comes when an employer does not pay the same for maternity leave as they pay for shared parental leave.
Contrary to the Capita case, the general consensus is that having different policies for maternity and shared parental leave is not a direct act of sex discrimination, because both men and women can take it.
However, employees could bring a (more difficult but still valuable) indirect discrimination claim against an employer.
Male employees could claim that a policy which does not enhance shared parental leave is targeting men, as men are more likely to take this kind of leave (while women would enjoy more generous maternity leave), and that the policy is therefore discriminatory.
Indirect discrimination claims can be defended if the employer justifies their policy, for example, if it has enhanced maternity entitlement because it is trying to recruit and retain women to a male-dominated workforce.
This has worked for some employers, but as we move to a more equal workforce, it will become less relevant.
How to be fair to your employees
If you’re an employer, you should think about a shared parental leave policy now, so that you’re not stumped about the next steps.
You need to think about what you are going to pay employees during shared parental leave and, specifically, if it will be equivalent to maternity pay. If not, you need to think about how you would justify this decision if challenged.
Changes like shared parental leave will continue to pose challenges for businesses. However, many of these shifting work patterns are positive and should be embraced.
The more progressive employers out there will grasp the opportunity to encourage this more equal approach to work-family life balance.
Allowing a team to work flexibly or with more paid time off for a new baby can really boost productivity and loyalty in the long term.