Guernsey: Shared Parental Leave For The UK While Guernsey Struggles With The Concept Of Maternity Leave

With the news that Guernsey has again pushed back its review of proposed Maternity Leave provisions for another year, it is refreshing to hear that the UK Government is continuing with its timetable for implementing Shared Parental Leave.

In contrast to Guernsey, where there are no statutory provisions in relation to maternity leave, the UK Government is looking at extending the already generous leave provisions for mothers to encompass fathers and partners of those who have recently had children.

As many employers on the island follow the UK as a model of best practice, despite there being no requirement to do so, this development could further increase the difference in experience that Guernsey employees have when it comes to maternity or paternity leave.

THE FOLLOWING ARE SOME OF THE KEY CHANGES TO UK LEGISLATION IN RELATION TO SHARED PARENTAL LEAVE:

Parents can decide how and if they will share parental leave

Within the first year of the child's birth, and after the mandatory two week leave period for new mothers, the remaining 50 weeks are available to be divided between either parent in whatever ratio they choose.

A new statutory pay will be offered

At present fathers already have the ability to take additional time off to care for their child in the first year of the child's life. However, the statutory pay that is offered creates a fundamental barrier to the majority of fathers wishing to take up the offer. How much this rate will differ under Shared Parental Leave will drastically affect the level of take up of the scheme.

Security of employment

As much as for the employee who is taking the parental leave, it is important for the employer to know that their employee is planning to return and where they will fit into the business. Should the mother or father take 6 months or less maternity leave, they will be entitled to return to the same role they were employed in prior to leaving. Should either parent take longer than 6 months, the employee can still feel secure in the knowledge that they have a job, however the employer is not required to ensure that they return to an identical position on their return. Instead, they are assured they will return to a similar position.

Eligibility test

In order to be eligible for Shared Parental Leave both parents need to pass a two-stage eligibility test. In essence, the eligibility of one parent relies heavily on the other. The stage one "joint" test requires a partner to have worked for any 26 weeks within a 66 week period and to have earned at least £30 gross salary per week for any 13 of those 66 weeks.

The stage two "individual" test determines what pay and leave the individual will qualify for. In order to qualify for leave, the parent must have worked a minimum of 26 weeks' continuous service, with the same employer, at the 15th week before the baby is due. They must also still be employed by that employer when they intend to take such leave.

Keeping in Touch days

It is important for both the employer and the employee to keep in touch during the maternity leave. This is essential to ensure an easy return to the workforce for both parties. Under Shared Parental Leave each parent will be entitled to 20 Keeping In Touch days and will be able to use them on a part-time basis to ease their return to work. These 10 days are in addition to the 10 that mothers are currently entitled to and will be renamed to ensure their distinction.

The amount and type of contact between employee and employer must be reasonable. Contact can be made in any way that best suits either or both. For example, it could be by telephone, email, letter, or by the employee making a visit to the workplace.

The employee is also allowed to work for up to 10 days during their maternity leave without it affecting their maternity pay.

Both employee and employer must agree about whether the employee should work any Keeping In Touch days, how many they will work, when they will work them and how much they will be paid for them. The employee is under no obligation to work them and the employer is under no obligation to offer them.

The employee must also agree with the employer what sort of work they will do. Keeping In Touch days could be particularly useful in enabling the employee to attend a conference, undertake a training activity or attend for a team meeting.

The rate of pay is a matter for agreement with the employer. It may be set out in the employment contract or agreed on a case by- case basis. However, the employee must be paid at least the National Minimum Wage.

EFFECT ON EMPLOYERS

While it is clear that the majority of these changes are for the better in terms of the employee and, in particular, working mums wishing to have children but also return to the work force. What is not clear, is the impact it will have on employers.

It is potentially unfair to say, but is also in the majority true, that traditionally when employers take on male staff they do so with the understanding that they will not be required to offer any leave in relation to parental cover save for the initial two weeks after birth.

As a result employers now lack certainty as to who is entitled to parental leave, when they must give parental leave and individuals whom they thought would be guaranteed to be in the office save for holidays, now appear to also have flexible and uncertain working habits.

In answer to the Institute of Directors and small businesses who petitioned for clarity on the subject, the UK Government has attempted to resolve the uncertainty by restricting individuals to changing their agreed timetable to a maximum of three times.

GUERNSEY PERSPECTIVE

While not a complete answer to the issue, these are the proposed changes in a very simplistic form, but what impact will they have on Guernsey?

Increasingly we are seeing the employment market in Guernsey change, mainly due to the influence of pan-jurisdictional companies and their willingness to embrace UK legislation on the basis of good practice and efficiency.

In many ways it is easier to have one handbook and set of guidelines for all that encompasses good practice over all jurisdictions, rather than attempt to separate each jurisdiction individually. As a result, we are seeing a greater and greater divergence in what companies are offering staff. As it stands in Guernsey, employers have no legal requirement to offer any maternity leave. Many employers do but consistency in offering paternity leave is still a long way off.

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