UK: Why Can't Men Have Babies?

Last Updated: 3 October 2014
Article by Richard Isham

It's now time for businesses to start planning how they are going to deal with Shared Parental Leave, as the legislation comes into force on 1st December 2014. Shared Parental Leave ("SPL") will apply in relation to children who are due to be born on or after 5th April 2015. It also applies to children who are placed for adoption on or after that date.

How does SPL work?

Subject to giving eight weeks' notice, employees can share up to 50 weeks of SPL (the first two weeks' is compulsory maternity leave for the mother):

  • at any point in the first year following the birth or adoption of the child;
  • concurrently with the mother's maternity leave (once she has given notice to cease her maternity leave), paternity leave or parental leave; and
  • the block can be continuous (ie. one period) or discontinuous (ie. one week on leave, one week at work and so forth).

Employees will be able to take three separate sets of leave, or make three requests to change the leave dates requested, unless otherwise agreed with the employer.

Does it need to be accepted by the employer?

Continuous: employers may not refuse a request for a continuous period of leave.

Discontinuous: if discontinuous periods of leave are requested, then the employer can agree, or enter into a two week consultation period to consider the request and alternatives to it. If no agreement is reached during this period, the employee can: (i) take the total amount of leave requested as a continuous block of leave as long as it commences at least eight weeks after the worker's original request was made; or (ii) withdraw the request for discontinuous leave.

If the employee withdraws the request, he/she could then make three separate requests for continuous periods of leave for, say, eight weeks each (with eight weeks' notice in between each period), which the employer would have to agree.

Evidencing the entitlement

The legislation does not require (in fact makes real no allowance for) employers to investigate the circumstances of a co-parent who is not their worker. In saying this, you may decide to investigate, but be very careful as you must try and avoid discrimination/victimisation claims.

Must SPL be paid at the same rate as enhanced maternity pay?

A big, big question without a clear answer.

The case for not needing to: In the case of Shuter v Ford Motor Co Ltd, the Employment Tribunal held that an employer did not discriminate when it paid only the statutory rate of additional paternity pay to a male employee taking additional paternity leave when a female employee on maternity leave would have been entitled to her full rate of basic pay. The Tribunal concluded that there was no direct discrimination because the appropriate comparator for the male employee was a woman who had also taken additional paternity leave and such a woman would have been treated in the same way as the man. The Tribunal went on to conclude that although such a policy was indirectly discriminatory, it was objectively justified (in the circumstances of the particular case) by the need to recruit and retain women in what was otherwise a male dominated workforce.

The case for it possibly being discriminatory: This involved the European courts dealing with a Spanish case involving parents' right to time off to breast or bottle feed a baby. That case concluded that, since bottle feeding could be done by either the father or the mother and the Spanish regulation was intended to benefit/enhance the family relationship, it would be discriminatory to pay women more than men. Arguably, SPL has similar objectives – allowing men and women to share childcare for the benefit of families generally.

We will no doubt have a test case next year. Until then, you have to make a decision upon whether or not to enhance SPL. A number of companies will rely on the UK Tribunal's decision relating to paternity pay and decide not to enhance SPL; others will be concerned about the Spanish case and consider enhancing SPL. If you do enhance SPL, commercially how much will this amount to? Is it better not to enhance until the Courts say otherwise? Are you likely to face one of the first claims?

There are complex regulations dealing with the calculation of the amount of SPL available to workers and this is to be worked out by the workers themselves. It may well be that, in order to avoid errors resulting in over or under payments, that employers have, as part of their SPL policy, clear instructions as to how SPL entitlement is calculated.

Press coverage of this new family-friendly right is likely to result in workers enquiring about your policy - indeed, one of Wedlake Bell's partners, David Israel, was recently interviewed by Sky News on this whole area. Now is the time to put your thinking caps on and decide how you are going to approach SPL.

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.

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