Can the Government really achieve Utopia?

Can there ever be a work life/balance for both men and women. That is what the Government hopes to achieve with expanding on the new Additional Paternity Leave provision.

The current law
Eligible employees as of 6 April 2003 are entitled to take either one whole week or two consecutive weeks ordinary paternity leave within 56 days of the child’s birth or placement for adoption.

The Paternity & Adoption Regulations 2002 set out the minimum statutory requirement to ordinary paternity leave (“OPL”) together with the criteria that the employee must meet and the steps they must take to exercise that criteria.

The purpose of the OPL was to enable an employee to care for the child or support the child’s mother. The eligibility criteria that was to be satisfied was sufficient service with their employer, one of the specified relationships with either the child or the child’s mother or adopter, and having responsibility for the child’s upbringing. The employee could then either take one or two consecutive weeks.

The amount of notice the employee must give their employer when they wanted to exercise their right and where necessary the evidencing of their eligibility to do so. (The required length of service must not be less than 26 weeks ending with the week immediately prior to the 14th week for the child’s expected week of childbirth.

The new law
Labour introduced a new proposed period of additional paternity leave (“APL”) which the Coalition Government has supported. This right will apply to parents with a baby due on or after 3 April 2011 and to adoptive parents who were notified that they had been matched with a child on or after that date.

The right to take this additional leave is for an employee who in relation to the birth of a child is the child’s father or spouse or partner (of either sex) of the child’s mother.

In relation to the adoption of the child, is the spouse partner (of either sex) or the person who, having been matched with adoption has elected to take adoption leave. An eligible employee statutory minimum entitlement is to one period of additional paternity leave which must be taken to care for the child taken in multiples of complete weeks and lasts between 2 weeks and 26 weeks. The period of additional paternity leave must be taken within a window that starts 20 weeks after then it is 12 months after the child’s date of birth or placement for adoption and is dependent on the employee’s spouse, civil partner or partner home return to work from the statutory maternity or adoption leave.

This means that if a mother returns to work before the end of her maternity leave entitlement the father will be able to take up the remaining time up a maximum of 6 months.

However the Coalition Government wish to go further.

Further proposals
Mr Clegg wants to introduce proposals where he allows parents to share the overall leave allowance which could be either paid or unpaid. The other consideration is that both parents could be off work at the same time and the leave as long it is in agreement with the employers could be taken in a number of chunks rather than one single block. The Government thinking behind this is for ensure equality between men and women and also supporting good parenting.

However there has been quite a bit of criticism and concern from the business sector relating to this. For example how are businesses to cope with getting in temporary staff if an employee decides to take chunks of leave. Currently businesses know that if somebody is off on maternity leave they will obtain cover for a year. The level of training that is invested by a company in temporary cover is substantial. If a parent returns after a month or 2 weeks then they go off on another chunk of leave this would cause huge difficulties for the company. Also the company would be put to a huge expense and burden. This means they would have to use agency workers and incur agency fees.

It is rare that both parents work at the same company, therefore how do employers check a father stating that his wife has let him take half of the parental leave. That would be a logistical nightmare.

Also the Government want to extend flexible working rights beyond mothers and fathers to grandparents or close family friends.

Whilst Nick Clegg’s proposals are admirable a lot of quarters are concerned that this will further impose burden and costs to an already fragile economy.

 Krishna Santra is an Associate in the Employment Team at Matthew Arnold Baldwin LLP