From 1st December 2014, couples will have the legal right to share maternity leave between each other in their respective jobs during the first year of caring for a child (termed Shared Parental Leave or ‘SPL’ for short).
These new Regulations mean that, from January 2015 onwards, employers can be served with notice of an employee’s intention to share maternity/adoption leave and pay with regard to children due on or after 5th April 2015. SPL will enable a qualifying working couple to share leave by way of the mother gifting part of her 52 week allowance to her partner to use instead.
The Department for Business, Innovation and Skills estimates that around 285,000 working couples will be eligible to share their leave using SPL from April 2015 onwards. The highly flexible nature of SPL even means that a couple can spend time together with their child by using SPL over the same period of time.
In the vast majority of cases, an employer will be bound to accept the employee’s request for SPL regardless of the effect on their business or staffing levels. However, there are certain situations in which an employer can refuse to grant SPL in the form requested. The potentially vague distinction between situations in which an employer can and can’t validly refuse a request for SPL makes it likely that cases will be brought on SPL grounds in the future.
Upon meeting the qualification requirements for SPL, the mother (or adopter) can transfer a portion of their 52 weeks of Maternity Leave to the child’s father or their current partner during the first 52 weeks of caring for the child.
This will not affect the two weeks of paid Paternity Leave currently available to fathers or a mother’s/adopter’s partner. Indeed, as before, couples adopting a child will have the same legal rights as those having a baby.
In certain circumstances, an employee’s request for SPL will be binding on the employer. Whilst it is open to employers to have informal discussions with employees concerning the possibility of amending SPL leave periods for business reasons, they have a duty to ensure that an employee does not suffer any detriment or disadvantage for using SPL.
Indeed, unsuitable conduct from an employer by way of the application of inappropriate pressure, decision-making or detriment could lead to discrimination action by an employee.
SPL can either be taken as one block of time or multiple periods of time. Whilst an employer is able to disagree with the timing of multiple blocks of time, they are unable to prevent the overall period of SPL being used. Despite their limited ability to do so, employers will have to be cautious of their reasoning when refusing multiple periods of SPL, even where it is stated as being for business efficacy reasons. Any employer who refuses an employee’s request for multiple periods of SPL, in circumstances where a colleague has had a similar request granted, could find their decision open to potential legal challenge.
Whilst employers can decide how best to incorporate the new Regulations into their office rules and procedures, it is crucial that their procedures lead to fair and consistent decisions. Failure to do so risks legal action from affected employees.
Take the following example. Gary works in a low-paid factory job and his girlfriend is expecting their first child in August 2015. Despite working in a male-dominated environment, there are a number of female staff. Gary is aware that two female members of staff have had their requests for SPL over multiple blocks of time approved, so is angry that his similar requests have been refused without any reasoning being given. His manager has since informed his colleagues of his request for SPL, which has led to him being nicknamed “mother hen” by colleagues.
In the above example, it would be open to Gary to bring a formal complaint against his employer due to the apparent gender discrimination in turning down his SPL request and the detriment suffered due to the teasing from work colleagues.
There are many other situations in which a suitable HR procedure will be required to ensure discrimination does not occur. One particular example could be a scenario in which a male or female partner (i.e. not biologically related to the child) are refused permission for multiple blocks of SPL despite their enduring relationship with the mother and the child, in contrast to mothers and fathers.
In light of the above, it is vitally important that employers treat all requests fairly, act without bias and provide valid reasoning for any decisions made in relation to SPL requests. Whilst difficult HR decisions and forward planning may be required to adapt to the periods of employee absence, it is vital that SPL requests are appropriately considered and deliberated by employers.
Indeed, there is a risk of the new Regulations catching employers unawares, particularly those without knowledge of the SPL time limits, limit on requests and the correct form of notice.
As in most employment situations, the preferable route is for an initial informal conversation between employee and employer, prior to any written requests for SPL being made. Whilst this cannot be treated as an opportunity to apply inappropriate pressure to cancel or amend SPL periods, a casual discussion would be a good forum to attempt to reach an amicable agreement as to the best arrangement for all parties involved – the employer, the couple and the child.