Wake-up call – Paternity leave shake-up

Under a shake-up of maternity and paternity rights, there will soon be flexible leave open to both parents. Legal expert James Hall explains what the dramatic changes to parental leave will mean for employers

The problem
There is a suggestion that the Government will bring in a new system of flexible maternity and paternity leave. When will this happen and will it not just result in ever-more expense to companies at a time of economic crisis?

The Proposed Law
In May 2011, the Consultation on Modern Workplaces was announced. Due to conclude last August, this has now been delayed, with a result hoped for early this year.

The policymakers are aware of the financial impacts on businesses and, as such, they are keen to reduce administration overall. However, the message is that a cultural change in favour of fathers is long overdue.

The coalition is keen that fathers be involved in the pregnancy right from the start. The proposal is that they would therefore be entitled to attend two ante-natal appointments. This would either be through specifically allowing them to attend these, or by changing parental leave provisions to allow for this.

The coalition further intends a radical shake-up to the way parents share their leave for the first 52 weeks of their child's life.

The proposal is that the first 18 weeks will continue to be designated as "maternity leave", in line with EU directives. During this time, the father's current allowance of two weeks' "paternity leave" will remain the same.

For the remaining 34 weeks, the proposal is to create a period of flexible "parental leave'" that is open to both parents. During this time, it would be up to the parents how they wish to structure this leave up to a combined total of 52 weeks between them.

Under current proposals, there are a myriad of ways in which this could be taken. It may be that the mother wants to take the traditional route and have the full 52 weeks herself - in this event, the father will be allowed four weeks' "reserved leave" on top. Alternatively, it may be that the mother wants to take half or three-quarters of the time herself and have the father take the rest, while she returns to work.

What is more interesting is that the proposals would allow for the mother to have some weeks back at work in the middle of her maternity leave, with the father taking over at home. It is also possible that both parents could set up a part-time working arrangement, splitting the leave between them, while both continue to work.

Additionally, there would be no restrictions on both parents taking leave at the same time, provided that their total leave does not exceed 52 weeks overall.

Expert Advice
All forms of parental leave can be expensive and tricky subjects for employers. However, these proposals, while representing a dramatic change for fathers in particular, are not necessarily anti-employer.

If a constructive dialogue is maintained by the employer with both parents, the ability for them to be flexible may also have benefits for the business. For example, a mother returning to work for a particularly busy period could be very beneficial. Alternatively, if a part-time arrangement could be found, this would avoid that mother falling "out of the picture" for a lengthy period, while also minimising any guilt of returning to work too soon.

Fears that this will involve huge additional expense paying for fathers on leave should be looked at objectively. It may not work out perfectly even, but the reality is that if some fathers are taking longer leave periods, some mothers will be taking shorter leave periods.

Further, this would not represent an absolute right of parents to decide what leave they want to take. While an employer should not unreasonably refuse any requests, if the reality is that the request would not work for genuine business reasons, then it is possible to say no.

Check list

â- It is likely that at least some flexibility will be introduced, so ensure that relevant managers and other staff are aware of this in plenty of time before the first requests come in.
â- Consider how you currently structure your payment terms for maternity leave and how fathers may be incorporated into this.

Beware!
There are bound to be some "traditionalist" senior staff in many companies. The reality may be that a cultural change is needed and the sooner this can be done the better.

If tackled constructively, the new laws when they come in may provide an all-round benefit to both employers and employees. However, if met with unreasonable resistance, expensive litigation may ensue.

Contact
James Hall is a solicitor at Charles Russelljames.hall@charlesrussell.co.uk