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Val Dougan

Dundas & Wilson

Professional Support Lawyer

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Understanding the changes to parental leave arriving in April 2015

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Getting to grips with the new concept of shared parental leave (SPL), which is due to be introduced in April 2015, involves more than a technical understanding of the new procedure.  The social engineering behind SPL begs us to consider not only why this scheme is being introduced but also the wider cultural benefits.

I say this because quite frankly introducing the scheme and implementing it will be at best inconvenient for employers. Many will also wonder why they are spending time and money on a scheme which according to government predictions will be used by just 2-8% of those eligible to do so.

SPL will replace the current Additional Paternity Leave (APL) system, which enables a mother who returns to work early, to transfer the remaining period of her leave to her partner.  Anecdotal evidence suggests there has been a very low take up of APL on the simple basis that fathers, who are still more often than not the principal breadwinners, cannot afford to take a lengthy absence from the workplace and be paid £137.78 per week during that period.

Where SPL differs from APL is the fact that parents (provided they satisfy the eligibility tests) can both take paid time off together or swap leave back and forward during the 52 week period following the birth of their child.  In addition, parents have some ability to change their planned schedule of leave during SPL.

Parents have to opt in to the new system, and many mothers who wish to be the primary carer will simply pursue the "traditional" maternity leave route. If, however, parents chose to go down the SPL route, it can start as early two weeks after the birth of a child.

Although employees who wish to opt into the SPL system are required to provide an indication of the pattern of SPL, this is not binding. In addition to providing an initial notification of their entitlement and intention to take SPL, an employee is then required to give their employer eight weeks' notice of any period of leave they intend to take (separate from the initial notification).  

A two week discussion period is built in to the eight week notice period to discuss the pattern proposed. If the parties cannot agree then the leave must be taken in a single block starting on the date of the employee's choosing.

Employers may take some limited comfort from the recent announcement that employees will be restricted in their ability to swap leave back and forward and make changes during SPL. Unsurprisingly an unfettered ability to change working patterns was not welcomed by employers. The government has however confirmed that employees will have the ability to make three requests to take a block of SPL or vary previous requests.

Crucially it's only after there have been three requests which have not been agreed that an employer can refuse a leave request. The government response states that "changes that are mutually agreed between the employer and employee do not count towards the cap." Previously the government had said that if agreement could not be reached then the default position would be that an individual's full entitlement to SPL should be taken in one continuous block.

But given that employees can make three requests, it would appear to me that they can get round an initial refusal to take a pattern of leave by making a change request eight weeks prior to the start of the next period they wish to take. 

It certainly seems that parents who have older children at school are likely to be able to take steps to ensure that they are on SPL during school holidays in their younger child's first year, which could cause additional difficulties for employers.

And back to those wider cultural benefits? The government hope that by increasing choice for fathers to spend more time with their children, this will:

  • reduce discrimination against women,
  • reduce the gender pay gap
  • enable both parents to spend time with their children and retain strong links with the labour market.

All of which sounds great in theory, but may not be experience of the HR professionals grappling with the introduction of a complex leave regime, policy changes and finding cover for parents who take their leave in short blocks.

Evidence from other European countries suggests that take up rates for fathers taking leave is directly linked to the amount of income replacement. Although an additional four week paid "reserved period" was considered, this was ruled out by the government on the basis of cost in the current economic climate.

Yet many organisations offer enhanced maternity pay during the maternity leave period. If employers offer the same rates to parents taking SPL this may increase the take up by men and succeed where APL has failed. The success of the wider cultural aims of SPL will very much depend on the level of male take up before we see a move towards shared parenting. On the other hand if organisations choose to pay statutory rates during SPL, but only retain their enhanced payments to women on maternity leave, this may present a real dilemma to parents. Ultimately there may be a price to pay for flexibility. 

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Val Dougan

Professional Support Lawyer

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