Shared parental leave – 5 key issues and the implications for your business

Shadows showing both parents sharing care of a childIn the next few months many businesses will receive their first requests from parents to use the new shared parental leave and pay regime, in force for babies due or children adopted from 5 April 2015. Mothers will be able to opt into the regime and share 50 out of 52 weeks' leave and 37 out of 39 weeks' statutory pay with the other parent.
There are hopes that the new regime will bring in a cultural change towards shared parenting, with the side-effect of reducing the disadvantage mothers suffer at work due to taking childcare leave. Best practice employers will want to embrace these aims, but the new regime also presents certain practical challenges for businesses. Preparation is key.

  1. The million dollar question: should you enhance pay during SPL?

    A key issue for businesses will be the extent to which you can or should offer enhanced pay during periods of SPL, particularly if you enhance maternity pay. Businesses wishing to support culture change should bear in mind the evidence suggesting that levels of take-up will be largely determined by whether statutory pay is enhanced.The Government line is that there is no need to enhance pay during SPL even where maternity pay is enhanced, on the basis that there cannot be any (direct) sex discrimination as both female and male parents on SPL are treated alike. But the legal position is not as clearcut as the Government suggests; there remains the potential for other claims such as indirect discrimination and unlawful detriment. Businesses will need to assess the likelihood of claims and the level of risk when deciding their pay strategy.

  2. Handling disruption to the business

    Maternity leave can only be taken in one block, as could the now defunct additional paternity leave. In contrast, an employee is entitled to take three separate periods of SPL by giving three separate notices – an employer cannot refuse. A single notice can also request unlimited periods of discontinuous leave, but there is no obligation on the employer to agree. Normally only 8 weeks' notice of leave dates is required.

    This presents two problems for businesses: planning short-term cover and ensuring that requests for discontinuous leave are dealt with consistently. Businesses will want to encourage employees to give as much notice as possible and ensure they plan in advance how cover will be resourced. Processes and training may need to be put in place to ensure notices requesting discontinuous leave are handled appropriately and minimise the risk of discrimination claims.

  3. The paperwork

    Even the Government has acknowledged that the regime is complex. It will be something of a challenge to draft a user-friendly, practical policy, and a myriad of notices will be needed to cover different eventualities. HR, payroll and managers will all need to be trained in how to operate the system. Other existing policies will also need updating to reflect the new regime, for example to distinguish SPL from unpaid parental leave. April 2015 also saw changes to unpaid parental leave and adoption leave (to more closely mirror maternity leave), while ante-natal rights were enhanced from October 2014. A thorough review of family policies is called for.

  4. Checking up

    Businesses will need to decide whether and how to check eligibility and monitor SPL, given that the right is shared between the two parents. Although there is no obligation on businesses to contact the other parent's employer to check what leave has been taken, they can choose to require their employee to provide details of that employer to enable such contact. They may also need to consider a disciplinary process if the right is abused and amend policies accordingly.
    Or they may prefer to keep the hefty administrative burden to a minimum and give employees the benefit of the doubt.

  5. Redundancy during SPL

    Being on family-related leave does not prevent an employee from being provisionally selected for redundancy (although some adjustment to redundancy criteria may be necessary). However, businesses should remember that they must give priority for suitable alternative vacancies to employees on SPL in the same way as for employees on maternity leave.

The hard work is now, getting to grips with a complex regime. Hopefully, once systems are in place, businesses will reap the rewards of greater equality both at home and in the workplace, and potentially greater employee engagement and loyalty too.

Join our upcoming webinar:

Key employment law round up - Friday July 17 2015 - 15:30
Our expert speakers will take you through the key employment law issues that you need to know as an in-house counsel. By watching this webinar, you will learn about:
• Holiday pay
• Protecting the business
• Case law developments
• Grievance procedures

This agenda is provisional and may be subject to change.

Click here to register.

 

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