11 November 2014 by

Will your employee “mix and match?”

The Shared Parental Leave Regulations

The times they are a-changing’

We have already seen the extension to all employees of the right to request flexible working.  This change, which took effect from 30th June, was intended to provide more diverse working patterns and remove the cultural expectation that flexible working only had benefits for parents and carers.

However flexible working rights are, well, not quite right.

Through upcoming legislative changes, the government is aiming to move away from the current old-fashioned and inflexible arrangements and create a new, more equal system, allowing both parents to keep a strong link to their workplace.

The Shared Parental Leave and Pay Regulations are expected to become law on 1 October 2014.  In summary, these will allow new parents to share parental leave, and will apply to all employees whose babies are due after April 2015.

But will the changes work?

What are the new regulations?

The draft regulations set out the new statutory shared parental pay entitlements for parents.  They contain some complicated quite rules but essentially, under the new system:

  • employed mothers will still be entitled to 52 weeks of maternity leave as a day one right;
  • mothers can choose to end their maternity leave after the initial two week recovery period;
  • working parents can then decide how they want to share the remaining leave;
  • fathers will gain a new right to take unpaid leave to attend two antenatal appointments;
  • there will be a new statutory payment for parents on shared parental leave (SPL) with the same qualifying requirements that currently apply to statutory maternity and paternity pay;
  • SPL can be requested as a block or “discontinuously”
  • those who have adopted a child will be entitled to the same pay and leave as birth parents.

So what are the risks for employers?

Will employers get used to more men taking time off after their child is born and more mothers returning to work earlier? More generally will employers be receptive to men requesting a part-time working week in order to, for instance, concentrate on a sport?

Some issues that we foresee arising may be:

  • What about the employer who employs both the mother and partner, causing practical issues?
  • Could employers could be vulnerable to discrimination claims from fathers seeking parental rights that mirror those available to mothers (i.e. enhanced pay for women that fathers may not get)?
  • Employers may be affected by uncertain work patterns and find managing various employee requests unmanageable.

Is there any HR planning we can do now?

There are some practical steps that employers can take now:

  • When was the last review of your current family friendly policies? Review to ensure they are up-to-date.
  • If you employ two employees expecting a baby together, how will you deal with a request to take SPL?
  • If you offer female employees enhanced maternity pay, consider whether you will provide enhanced pay for those taking SPL
  • Consider how you will arrange adequate cover for employees who may take SPL, particularly for those taking discontinuous parental breaks;
  • Ensure that you offer training for your line managers on the rights under SPL. To reduce the risk of discrimination claims, ensure that line managers and HR respond to requests consistently in order to mitigate any challenges.
  • Bearing in mind that the first SPL request could be made by December, ensure your systems are ready to process requests for SPL by 1 December 2014.

BIS has just published a technical guide to assist employers when they are considering the new rights to shared parental leave and pay.

So will they work?  Well only time will tell, but these are certainly ‘interesting times’ and all we can say is, watch this space!

For advice on drafting or advice on flexible working policies or any employment related issues please contact one of our solicitors in the Employment team here.

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