Shared Parental Leave: a checklist for In-House Lawyers

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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) which is available in respect of children expected to be born or placed for adoption after 5 April 2015. 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 ShPL 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.

This checklist may assist in ensuring your organisation is ‘ShPL ready’.

Please note: this checklist is for guidance only and is not a substitute for legal advice. In each case, the appropriate action will depend on the particular facts and law. If you are in any doubt about the applicability of any of the steps or the legal issues set out below, please contact Andrew Rayment.

Practical Checklist

  • 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. Try not to base a ShPL policy on an existing maternity or paternity leave policy or to try and write one from scratch. 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. 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.

Strategic checklist

  • There is a huge amount going on in the family friendly legal 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.

Contact Details

For further information or to discuss how to resolve your dispute, please contact David Smedley or Andrew Rayment.