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Flexible Parental Leave: How Will the Government’s Proposals Affect Employment Practices?
By Christopher J Sherliker

The government published its Consultation on Modern Workplaces on 16th May 2011, which proposes a four-stage plan to make parental leave ‘flexible’ and ‘family-friendly’. Silverman Sherliker Trainee Anna Stanworth and Intern Benjamin Moore examine the coalition government’s radical new proposals and how these will affect employees if implemented in April 2015.

The Current Law

The current legislation is divided into three sections, as follows:

Maternity rights

  • Mothers currently have the right to paid leave to attend antenatal appointments, plus 39 weeks’ paid and 13 weeks’ unpaid maternity leave (a total of 52 weeks’ leave).
  • For their 39 weeks’ paid leave, mothers will be paid 90 percent of average earnings for the first six weeks. The following 33 weeks will be paid at the statutory maternity pay flat rate.

Paternity rights

  • Fathers currently have the right to two weeks’ ordinary paternity leave, which will be paid at the statutory paternity pay flat rate.
  • If the mother decides to return to work without taking all of her maternity leave, fathers may be eligible to take additional paternity leave for up to 26 weeks (paid at the flat rate).

Unpaid parental leave

  • Each parent is allowed to take 13 weeks of unpaid parental leave for each of their children if they have been in continuous employment with their employer for at least one year.
  • This leave must be taken when the child is between the ages of one and five, and must be taken in one-week blocks with no more than four weeks’ leave in a one-year period.

The Proposals

The Coalition’s radical new proposals, if implemented, would have the following effect:

  • Fathers would be allowed unpaid time off in order to attend significant antenatal appointments (usually two appointments for uncomplicated pregnancies).
     
  • Maternity and paternity leave would be amended and reclassified:
    • Maternity leave would be reduced to 18 consecutive weeks taken around the time the baby is born and ordinary paternity leave would remain at two weeks
    • The remaining maternity leave period of 34 weeks (which is currently part of maternity leave) would become ‘flexible parental leave’ to be shared between both parents as they wish.
    • The parents may wish for the mother to take the whole remaining 34 weeks’ leave, meaning that she would still have a total of 52 weeks’ leave (the same as she is entitled to under current legislation).

      In doing this, the proposals do not intend to reduce a mother’s overall rights. Instead, they give couples the option, should they so wish, of sharing the 34 weeks’ parental leave.
    • Leave may be taken in small blocks or could facilitate returning to work on a part-time basis. For example, a mother could decide to return to work after 18 weeks, but use the remaining parental leave to work a three-day week on a part-time basis.
    • 21 weeks of the flexible parental leave would be paid at 90 percent of average earnings up to the existing flat rate.
    • In addition to a mother’s 18 weeks’ maternity leave, a father’s two weeks’ ordinary paternity leave and the 34 weeks’ flexible parental leave, each parent would be given an additional four weeks of paid leave.
    • The government hopes that by giving parents this additional leave period, the role of each parent will be recognised. This is seen to be a step forward towards a culture of shared parenting.
       
  • Unpaid leave provisions would be amended as follows:
    • A parent would no longer need to be employed for a continuous period of one year before being given the right to take unpaid parental leave.
    • At the moment, unpaid leave must be taken before a child’s fifth birthday. However, the proposals will extend this age to 8, 12, 16 or 18 (to be discussed and consulted on).
    • The amount of unpaid parental leave will be increased from 13 weeks to 18 weeks in line with the revised EU Parental Leave Directive.

Please note that although the terms ‘mother’ and ‘father’ have been used, the government intends that similar provisions will apply where a child is adopted and ‘father’s rights’ will be afforded to any spouse, civil partner or partner of a mother.

Good in Principle, Bad in Practice? – Concerns About the New Proposals

Although the proposals are clearly designed to render parental leave ‘fairer’ for fathers by giving parents a choice over who takes parental leave, critics argue that the practical impact of any new legislation would be limited by cultural and financial constraints.

Fathers may be reluctant to take the additional four weeks leave, already pejoratively dubbed “daddy month”, for fear of being perceived as uncommitted to their careers. This fear of stigmatisation may ultimately dissuade fathers from choosing to take any form of parental leave at all.

Financially, the government can only hope that employers will amend their occupational schemes accordingly to make sure that they are “shared”. In the absence of any amendments to occupational schemes, fathers will only receive the statutory flat rate (currently £128.73 per week), making parental leave financially unfeasible for many fathers, especially those who act as the breadwinners in low-income families. Unless an employer who offers mothers a generous maternity leave scheme of, for example, six months’ full pay and three months’ half pay decides to extend the same package to fathers, it will be financially impractical for fathers to choose to take over the child care responsibilities on a statutory rate.

Should the new proposals be implemented, however, and employers have not amended their occupational schemes accordingly, it seems inevitable that discrepancies in pay between maternity and paternity leave will be contested on discrimination grounds, with employers who offer generous maternity leave schemes particularly susceptible to legal challenges.

In order to protect themselves from future litigation, employers should look into offering men parental leave packages similar to those enjoyed by their female counterparts. As well as guarding against potential legal battles, such action could serve to make a firm stand out as a good, employee-friendly place to work and, ultimately, help it to attract staff.

Furthermore, in respect of equalisation, the government has not yet explained how it hopes to extend the pregnancy and maternity discrimination protection. Currently, women are automatically protected against unfair dismissal on the grounds of pregnancy or maternity, and it will be interesting to see how this protection is extended to all parents who take leave whilst their child is less than a year old.

Question marks also surround the practical issue of how employers are supposed to administer and monitor employee leave entitlement. Employers will not have the right to consult their employee’s partners in order to determine that they’re taking the correct leave. Instead, they will have to rely on “self-certified” leave requests signed by both parents. Although HMRC will have powers to investigate alleged incidents of abuse, concerns are already being raised that the new system could be subject to exploitation.

Further concerns surrounding the new proposals have been voiced by business groups, who fear that the cost of organising cover for parents with fragmented leave arrangements would be overly burdensome on small businesses. Whilst employers would have the power to resist requests for such arrangements on a number of broadly defined business grounds, business owners will be mindful that another avenue for appeals, legal challenges and grievances has been opened.

The consultation closes on 8th August 2011, and it will be interesting to see how the government addresses such practical issues and how it intends to equalise discrimination legislation in the future. Until this date, however, these proposals remain as proposals, and we just need to wait and see whether they will be implemented in the future.

Added: 1st June 2011

Christopher J Sherliker is a partner for Silverman Sherliker LLP who provide legal solutions across a spectrum of requirements.  Find out more about Silverman Sherliker LLP.

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