Are you shipshape for shared parental leave?

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Shared parental leave – help for employers

According to the results of a Department of Business, Innovation and Skills (BIS) survey published this month, 83% of those who are planning to become parents would consider taking shared parental leave (ShPL). The survey also revealed that two-thirds of those who were already parents would have considered taking ShPL if it had been available to them. This figure was higher among fathers than mothers. The survey, intended to assess the potential uptake of shared parental leave in advance of its introduction in April 2015, indicates that the number of parents taking advantage of the new ShPL regime may well be higher than initially predicted.

In view of the imminent changes, the aim of this article is to provide a ‘ShPL ready – checklist’ (hopefully this is helpful for those who are still preparing and reassuring for those who have already prepared) and also to look at the wider strategic considerations.

The Shared Parental Leave and Shared Parental Pay Regulations came into force on 1 December 2014. ShPL is available in respect of children who are expected to be born on or after 5 April 2015, or who are placed for adoption on or after that date.

The scheme is undeniably complex to administrate and employers will need to have a good understanding of the basic principles at least. That said, it is likely in reality that each employee’s request will need to be dealt with on a case by case basis given the wide range of possible scenarios in terms of which employees are entitled to ShPL, the different leave patterns that might be requested and the potential for employees to change their mind and give more than one notice of intention to take leave. It will be a steep learning curve and it would be unrealistic to expect HR to be fully conversant with every nuance and possibility of the scheme. In reality, much of the ‘learning’ is likely to happen at the time of and in response to a request. The key will be to recognise the red flags and know when to seek further advice or where there may be potential exposure to a claim.

Shared Parental Leave Checklist

Here is our checklist for ensuring your organisation is ‘ShPL ready’:

  • Ensure there is a new ShPL policy in place and it has been notified to staff and managers. Ideally, this policy should be checked over by in-house or external lawyers to ensure it covers everything it needs to. We do not advise trying to work up a ShPL policy from an existing maternity or paternity leave policy or to try and write one from scratch. In our experience this is likely to lead to a defective policy that could land you in trouble later down the line.
  • Ensure there are model notification of intention to take ShPL forms in place and, importantly, that employees and managers know where to find them. Again, the requirements for these forms are complex so use a model form rather than investing unnecessary time trying to create your own.
  • Remember that Additional Paternity Leave and Pay will no longer be available and relevant policies and employee handbooks will almost certainly need to be updated to reflect this.
  • Ensure that appropriate awareness training has taken place. This is important because the concept of a man or same sex partner proposing to take a long period of parental leave may still raise eyebrows or draw inappropriate comments from peers and line managers. It is important to have taken steps to prevent such treatment occurring in order to protect the business from detriment, discrimination or harassment claims. Bear in mind that the right not to be subjected to a detriment or dismissed for seeking to exercise the right to take ShPL is now in force.
  • Ensure there is a clearly understood policy within HR (this does not need to be made public) on whether your organisation will ask for evidence of the other parent’s eligibility for ShPL or for sight of the birth certificate. Adopting an inconsistent approach with different employees could eventually lead to discrimination claims.
  • Ensure thought has been given as to whether any current enhanced maternity benefits will be replicated for those employees on ShPL. It will not necessarily be unlawful not to do so but it is important to be able to explain the reasons behind any difference in treatment. In the event of any discrimination claim on this basis each case will turn on its individual facts.

Don’t forget…

Whilst you are updating your employment handbooks for ShPL, don’t forget these other changes to adoption and parental leave which will need to be incorporated into existing policies.

Since 1 October 2014:
  • Expectant partners (male or female) are entitled to attend up to two unpaid ante-natal appointments with their pregnant partner.
From 5 April 2015:
  • Employees proposing to adopt a child will be entitled to time off work to attend up to 5 pre-adoption appointments. The time off must be paid where the employee is adopting the child on their own. If the employee is adopting jointly then one of the parents may elect to receive the time off as paid and the other will be entitled to take the time off as unpaid.
  • Adoption leave will become a ‘day one’ right, with no qualifying service.
  • Adoption pay will be enhanced to 90% of pay for the first 6 weeks (mirroring statutory maternity pay).
  • Parents fostering a child under the ‘Fostering to Adopt’ scheme and eligible surrogate parents will be eligible for adoption leave and shared parental leave.
  • The period within which ‘ordinary’ unpaid parental leave can be taken is to be extended so that parents will be able to take parental leave at any time up to the child’s 18th birthday, rather than (as at present) before the child’s 5th birthday.
  • The statutory rate of shared parental pay, maternity, paternity and adoption pay will increase from £138.18 to £139.58.

Strategic considerations

There is a huge amount going on in the family friendly arena at the moment and employers may want to take this opportunity to review their approach in this area more generally. Family friendly policies can not only be used as recruitment and retention tools internally but can provide the employer with a good PR opportunity to publicise equality and diversity credentials. There is an emerging trend for employers to report and publicise their equality statistics often using social media platforms. The thinking is that if an employer has good policies and statistics in this area then why not tell the market?

It goes without saying that for employers involved in public procurement good equality and diversity polices and statistics can be a real advantage.

We are already seeing some larger employers joining the vanguard of those who have decided to replicate existing enhanced maternity benefits for employees on shared parental leave. Those who are going public about it are receiving favourable media and industry coverage not least because they are amongst the first employers to announce their intention to do so. Inevitably, at some point soon it will become ‘old news’ and the opportunities to make PR capital from it will decline. It may therefore be worth thinking now about whether your organisation has something positive to talk about on the diversity front and, if so, how this might be used in a beneficial way.

If you would like help with preparing a shared parental leave policy or more generally in relation to anything in this article our employment team would be pleased to assist. Please contact David Smedley or Andrew Rayment.