Employers could be forgiven for wanting to throw their toys out of the pram with the introduction of The Children and Families Act on 5 April 2015. These changes mark the birth of truly flexible working arrangements for parents, who will be able to share childcare responsibilities for their newborn.  Under the current regime, mothers are entitled to 52 weeks of maternity leave, of which 39 weeks are paid at a statutory rate.  Fathers are currently afforded 2 weeks leave at the time of birth and up to a further 26 weeks once the child is 20 weeks old (albeit only if the mother has returned to work).  From April next year, from two weeks after their child is born, and as an alternative to continuing maternity leave, mothers may opt into a system of shared parental leave.  This will allow parents to share leave and pay entitlements on a more flexible basis.

All parents who have caring responsibility for a child can exercise the new shared parental rights, subject to certain other eligibility and notice requirements.  Parents can decide how the leave is shared and can even take it together if they wish.  This must be negotiated with their respective employers, who will be unable to refuse the leave entirely.

The level of pay that fathers will receive is likely to have a direct effect on whether they take up shared parental leave.  The success of the shared parental arrangements will therefore undoubtedly depend on whether those employers who currently offer enhanced maternity pay to mothers, will extend this enhancement to fathers under the new regime.  Early figures show that 30% of employers are likely to do so.  Employers may, however, be left vulnerable to discrimination claims if enhanced pay is not applied across the board.  To date, it has been accepted that paying only statutory paternity pay, while continuing to offer enhanced maternity pay, is legitimate given that special protection requires to be afforded to women by virtue of their ‘unique biological position.’  However the impact of this new legislation – which effectively allows fathers to step into the shoes of mothers in terms of leave entitlement – could have the effect of removing this unique status and with it, an employer’s ability to justify enhancing pay for mothers only.

The risk of these claims and potential costs of enhancing pay are difficult to quantify until take up levels are established.  Policies should be considered in advance of the introduction of shared parental leave, and continuously monitored to assess the impact it has on the workforce.

Employers may struggle with juggling proposals submitted by employees for shared parental leave.  It will be possible for employees to take leave in three separate blocks. Managing cover for these periods will be difficult and potentially costly if work cannot be picked up by others in the team.  However there is a risk that employment relations may be damaged if the employer does not provide flexibility, which has potentially more costly implications for the organisation in the long run. So let’s not throw the baby out with the bath water! Offering an attractive policy can consolidate business objectives and give employers a chance to gain a competitive advantage and retain staff – considerations that are often overlooked when costs are being assessed in isolation.

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