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Managing New Dads in the Workplace

Posted by BDBF on 28 September, 2017

The right to shared parental leave came into effect just over two years ago. It was heralded as balancing the rights of parents to share what until then had been a mother’s right to a year off to care for their child. We anticipated that take-up would be low, and so far, that has turned out to be the case. However, as the scheme becomes more established, and with the continuing push for equality at work, shared parental leave – and an increasing balanced commitment to family life between parents more generally – will become more common.

However, many employers remain unprepared. This was highlighted in a recent decision in the Employment Tribunal in which Capita was held to have directly discriminated against a male employee who says he was deterred from taking shared parental leave because he was told he would only be entitled to statutory pay if he took more than two weeks’ leave (whereas employees on maternity leave would be paid more).

Although this decision very much turns on its own facts (and is being appealed), it reminds businesses of their duties towards all new parents, and of the potential pitfalls.

Shared parental leave

The Shared Parental Leave Regulations entitle parents to share up to 50 weeks of leave on the birth or adoption of a child. These 50 weeks must follow two weeks of leave that a mother must compulsorily take after the birth of a child. The right is flexible. Parents can split the time as they like, taken consecutively, or at the same time as each other, or in sequence in up to three chunks.

Parents who take shared parental leave are entitled to up to 37 weeks of statutory pay (a weekly rate set by the Government). This is all pretty straight forward, and applies equally to men and women who take shared parental leave in the same way.

The difficulty comes where an employer does not replicate enhanced maternity pay to employees who take shared parental leave.

Contrary to the Capita case, the general consensus is that having different policies for maternity and shared parental leave is not a direct act of sex discrimination because both men and women can take it. However, employees could bring a (more difficult but still valuable) indirect discrimination claim against an employer criticising a policy not to enhance shared parental leave on the basis that is targets men who are more likely to take shared parental leave and is therefore discriminatory.

Indirect discrimination claims can be defended if the employer justifies their policy. For example, that it enhances maternity entitlement because it is trying to recruit and retain women to a male dominated work force. This has worked for some employers, but won’t always do so and as we move to a more equalised workforce is surely less relevant.

What should employers do?

Employers should think about a shared parental leave policy now. This means that if a request comes in, you’re not stumped as to the next steps.

You need to think about what you are going to pay employees during shared parental leave and, specifically, if you are going to pay the equivalent to maternity pay. If you’re not going to do so, you need to think about how you would justify this decision if challenged.

In conclusion

Changes like shared parental leave will continue to pose challenges for businesses. However, many of these shifting work patterns are positive and should be embraced. The more progressive employers out there will grasp the opportunity to encourage this more equal approach to work/family life balance – allowing a team to work flexibly or with more paid time off for a new baby can really boost productivity and loyalty in the long-term.

Polly Rodway, Partner at employment law firm BDBF

A version of this article was first published in City AM on 8 September 2017