Shared Parental Leave: the biggest disappointment in the battle for equality?

2 January, 2018
by: Cripps Pemberton Greenish

If you offer enhanced maternity rights, you best consider whether

(olesiabilkei / 123RF Stock Photo)

you should offer equivalent enhanced pay for Shared Parental Leave. 

Following several conflicting Employment Tribunal decisions, when hearing Capita’s appeal against the first instance decision in Ali v Capita Customer Management Ltd, the EAT shall contemplate whether employers that offer enhanced maternity pay must offer equivalent enhanced shared parental pay.

Cases to Date

To date the crucial distinction at the Employment Tribunal has been the view of what is the ‘comparator’ for a man on Shared Parental Leave – i.e. is it the mother on maternity leave or a woman on Shared Parental Leave?

In the case of Ali v Capita Customer Management Ltd, the only case to find for the employee, the Employment Tribunal took the view that the comparator is the mother on maternity leave. The driver being that the right to take leave to care for the child is not triggered just by giving birth, but rather parental responsibility.

Low Uptake of Share Parental Leave

What is the reason for the low take up of Shared Parental Leave?

Is it the challenge of overturning society’s historic view that whilst the mother cares for the new born child the father should be at work; or, does it come down to economics and the fact that the vast majority of employers only offer statutory shared parental pay – even if they offer enhanced maternity pay?

When Shared Parental Leave was introduced back in December 2014, to apply to babies born or adopted from 5 April 2015, there was a fair amount of optimism.

It was hoped that the UK could follow in the footsteps of several Nordic countries, such as Sweden, where fathers have been encouraged to take time-off from work to care for a new born since the 1970s.

Shared Parental Leave is flexible

The complexity of the Shared Parental Leave legislation may have caused some confusion as to how flexible and advantageous it can be for new parents.

In short, the mother must take the first two weeks of maternity leave and maternity pay, but thereafter the remaining 50 weeks of maternity leave entitlement and 37 weeks of statutory maternity pay can be ‘shared’ between the mother and father.

Conceptually it becomes more complicated when trying to understand the flexibility it offers – Shared Parental Leave can be taken whilst the mother is still on maternity leave, parents can take it at the same time and separately, and it can be taken in multiple blocks (of a minimum of 1 week).

Despite the flexibility offered to new parents by Shared Parental Leave the take up has been almost embarrassingly low.

Equality

One of, if not, the main reasons for this is that many employers currently offer enhanced maternity pay provisions but do not do so those taking up Shared Parental Leave.

At the outset the Government’s position was that failure to do so was not discriminatory, whereas the Civil Service boldly stated it would match any enhanced maternity provisions. 

More recently, insurance company Aviva introduced equal enhanced pay for maternity leave and Shared Parental Leave (and there is no minimum service requirement!).

The upcoming EAT’s decision could see Shared Parental Leave becoming a far more appealing prospect for new parents.

If you have any questions regarding Shared Parental Leave please contact Chris Hovenden at chris.hovenden@crippspg.co.uk.