UK: Being A Working Parent: A Changing World Ahead?

Summary and implications

A recent study by the Institute of Leadership and Management reveals that only 10 per cent of new fathers, and only two per cent of managers, take more than two weeks' paternity leave. Infertility affects approximately 15 per cent of the working population and although birth through surrogacy arrangements are on the up, recent European Courts of Justice (ECJ) decisions confirm that mothers whose children were born through surrogacy are not entitled to maternity or adoption leave.

Those of us directly involved in employee management are only too familiar with the law's failure to deal with the changing landscape of working parents and their need for time off. Recent developments and legislative initiatives give employers some clarity on the extent of their obligations in such scenarios, bearing in mind the closely-linked, yet rapidly shifting, landscape of parenthood and work.

• The Shared Parental Leave and Pay Regulations will introduce a more complex system of post-birth and adoption leave for births and adoptions post-April 2015. As the Regulations are still in draft, for the time being little needs to be done. But, once the law is final, internal procedures and pay arrangements will need to be revised and possibly amended to reflect the new legal requirements. Managers will also have to be trained to deal with the new laws.
• As things currently stand, employees whose child is born via surrogacy arrangements are not entitled by law to either maternity or adoption leave. The employee may take unpaid parental leave and, with an employer's consent, other periods of leave, although this has the scope to change in the near future. Bear in mind that in most instances infertility will not be regarded as "disability", but remain live to this possibility and assess each case on its facts.
• Employees undergoing fertility treatment such as IVF only have limited protection from discrimination during certain stages of the treatment. This is an area where employers need to keep up to date and may want to adopt clear policies and procedures.

Shared parental leave and pay: what you need to know now

The aim of the new Shared Parental Leave (SPL) regime is to allow both parents to take time off during the child's first year. Employees will be able to "dip in and out" of leave and parents may take time off concurrently.

The basic rights of mothers are not changing:

• female employees continue to be entitled to 52 weeks' maternity leave (ML) from day one;
• female employees must take at least two weeks' compulsory leave immediately following the birth of the child (four weeks in the case of factory workers) (the Recovery Period); and
• existing laws on the terms and conditions which apply to employees during ML, the right to return to work, rights on redundancy and protection from dismissal and detriment are preserved and are extended to employees on SPL.

But, under the SPL regime, once the Recovery Period is over working parents can share the mother's remaining leave and pay period, providing they meet certain eligibility conditions. These include:

• the mother's partner being continuously employed for at least 26 weeks by the fifteenth week before the expected week of childbirth; and
• both parties giving the necessary notices, which by and large provide employers with eight weeks' advance notice of intention to take SPL.

The default position is that employees are entitled to one continuous period of SPL. Employees may request several discontinuous periods of SPL, but an employer is not obliged to agree to such a request. It is worth highlighting that where an employer agrees to discontinuous periods of leave, employees will be allowed to change their minds twice during the year about how their leave will be taken, and will be allowed to put forward new proposals.

Eligibility for statutory shared parental pay largely mirrors that for statutory maternity pay. The overall pay rates and pay period (39 weeks) remain unchanged and will simply be shared between the two parents. Some complex questions may arise for employers who offer enhanced maternity pay, but not enhanced paternity pay. We recommend that these are looked at before April 2015.

The SPL regime will apply to parents of babies due on or after 5 April 2015, or children matched for adoption on or after that date. As a rough guide, therefore, you can expect to receive SPL notifications from late 2014 onwards. Note that the relevant employment law protections, e.g. from unfair dismissal for requesting SPL, apply as of 1 October 2014.

Mothers whose babies are born through surrogacy arrangements are not entitled to maternity or adoption leave and pay

The ECJ has just delivered two judgments on the rights of so-called "commissioning mothers" whose babies are born through surrogacy arrangements. The ECJ clarified that employers who adhere to the current statutory regime do not discriminate against commissioning mothers. In practical terms, this means that employers do not need to offer commissioning mothers maternity or adoption leave or pay, but will need to allow them time off under other parental and annual leave regimes. Some employers may want to offer arrangements that mirror maternity or adoption leave and pay rights, and may see the benefit in doing so. However, the ECJ has clarified that such arrangements are voluntary.

The ECJ has also made it clear that infertility is unlikely to be regarded as a "disability" under European legislation. This largely holds true under the Equality Act 2010, but we advocate caution on the part of employers. This is because infertility may be the result of, or lead to, other medical conditions which may amount to disability. Generally speaking, a cautious approach will be to:

• consider the particular request made by the relevant employee;
• assess whether the employee falls or is likely to fall within the statutory provisions on disability; and
• determine whether, based on the above, the employer owes any legal duties to the employee under the disability provisions.

Bear in mind, however, that the position of commissioning parents may change in the near future. Under the Children and Families Act 2014, the Secretary of State may issue Regulations which will allow the parents to take statutory adoption leave and pay. We will update our readers if and when the law changes in this respect.

Employees undergoing fertility treatments such as IVF have limited legal protections

Fertility problems are estimated to affect at least one in six couples in the UK. And, in each year, around 60,000 fertility treatments are performed in UK-licensed clinics. So, what are the rights of employees undergoing fertility treatments? The current position, endorsed by a Code of Practice issued by the Equality and Human Rights Commission (EHRC) is as follows:

• A woman is not entitled by law to take paid or unpaid time off to undergo fertility treatments.
• A woman undergoing IVF enjoys statutory protections from sex discrimination during a limited period of time when the ova is collected, fertilised and "immediately" thereafter implanted. For example, the employee must not be dismissed for undergoing IVF treatment during this time. The position may be different where there is a gap between fertilisation and implantation.
• A woman also benefits from the protection of UK maternity laws, as being in a "protected period", once a fertilised ova is implanted (i.e. once the woman is regarded as being pregnant). If the implantation fails, and the pregnancy ends, the protected period ends after a further two-week period.

The EHRC Code recommends that employers treat requests for time off for IVF treatment "sympathetically". Whether or not employers choose to do so, bearing in mind the prevalence of fertility treatment, there is good reason for adopting clear procedures on the issue. For example, an employer may wish to make clear whether it allows employees time off to undergo IVF and, if so, for how long, whether or not with pay and in relation to how many attempts. It is often also helpful to nominate a member of staff with whom employees can discuss their issues on a confidential basis.

Whilst the law is slow to catch up with the rapid developments affecting working parents and would-be parents, changes are afoot. Now is a good time for employers to take a proactive approach to the benefit of their organisation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.