Parental childcare juggling looks set to continue in the wake of complex shared leave rules, says Amanda Jones, Partner at Maclay Murray and Spens LLP
A key focus of the Government in producing the draft Shared Parental Leave Regulations has been to create a simple to use framework that meets the needs of parents and employers. However, concerns are emerging that the Regulations are unwieldy and unworkable.
Running to an eye-watering 29 pages of complex detail, with two lengthy supplements of a further 42 pages, it can hardly be described as “light touch”. With the consultation period now closed, the outcome of this process is eagerly awaited.
The proposed UK provisions derive from the same European Directive that also governs the Spanish provisions for shared parental leave. These were considered by the European Court of Justice (ECJ) in 2013. The decision gives some indication as to the complexity of the system.
In Betriu Montull v Instituto Nacional de la Seguridad Social, the ECJ was asked to determine whether it was unlawful to exclude a father from shared leave where the child's mother would not have been entitled to maternity leave by virtue of the fact that she was self-employed and, therefore, not entitled to state social security benefits. The ECJ held that EU law does not prevent a member state from enforcing a measure which requires a mother to be an employed person covered by a state social security scheme for the father to benefit from a shared maternity leave scheme and related maternity benefit. The right of the father, in this sense, is a secondary right derived from the mother’s right to leave and pay. This is reflected in the UK draft Regulations.
The proposed Regulations also set out provisions relating to terms and conditions of employment during shared parental leave; the right to return to work; rights on redundancy; and protection from detriment and dismissal. All are very similar to the current provisions on maternity, adoption and paternity leave. Currently, a woman who takes up to 26 weeks maternity leave (ordinary maternity leave) will be entitled to return to the same job in which she was employed before the leave. If a woman takes more than 26 weeks, currently she will be entitled to return to the same job, unless this is not reasonably practicable. If so, she is entitled to return to a suitable alterative job on no less favourable terms.
On return from shared parental leave, an employee will have the right to return to the same job, irrespective of how many periods of leave have been taken, as long as the total is 26 weeks or less. If more than 26 weeks have been taken, the right is to return to the same or similar job.
Keep in touch-style days will be available for those on shared parental leave; these will have a new name and will be clarified in due course.
If shared parental leave does become commonplace, the move would have significant impact well beyond the field of employment law, not least the influence on socio-cultural attitudes towards the traditional childcare model.
Amanda Jonesis a partner in the Employment Pensions and Benefits team at Maclay Murray & Spens LLP and is accredited as a specialist in Discrimination and Employment Law by the Law Society of Scotland.
Shared leave explained
Currently, mothers are entitled to up to 52 weeks statutory maternity leave and fathers to one or two weeks statutory paternity leave following the birth or adoption of a child. Since April 2011, new fathers have been entitled to ask for Statutory Additional Paternity Leave and Pay if their partner returns to work before the end of their maternity (or adoption) leave or pay period. The father’s leave must currently start 20 weeks after the birth, effectively taking the ‘second shift’ of parental leave.
For children born after April 2015 2015, a mother will retain the right to a year of maternity leave but will be able to choose to switch to the new shared leave scheme if she wishes. The new scheme will enable eligible mothers and their partners to take up to 52 weeks of leave in total (37 weeks paid), to be shared between them either in alternating blocks or taken together (although two weeks (four for factory workers) compulsory maternity leave after the birth of the child will remain with the mother). Each employee will be required to give a minimum of eight weeks’ notice of their intention to take each separate period of parental leave. Employees will only be able to make up to three notifications for leave or changes to periods of leave during the 52 weeks. It will be open to both parties to agree further periods of leave. Employers will not be able to refuse leave; if agreement cannot be reached the default position will be that leave is taken in an uninterrupted block on a start date of the employee’s choice.
From 1 October 2014 new fathers will also get have the right to take unpaid leave to attend up to two antenatal appointments.
It is not yet clear whether employers who currently provide for enhanced maternity/paternity pay will be required to provide the enhancement to those taking shared paternity leave.