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What do the legislative changes to family working policies mean for employers?

Recent developments in family friendly policies have dominated the news headlines. In particular, the increase in paternity leave and pay, the extension to the right to request flexible working and the recent announcement by Nick Clegg that the Government intends to launch a consultation on the design of a new flexible system of shared parental leave.

While the focus has primarily been on the administrative burden these developments will place on employers, creeping up behind is a subtle but ever growing shift in culture towards a more 'gender neutral' approach to parental responsibility. There are early indications that this shift in culture is likely to spill out into the tribunal and court system.

It has long been a widely held premise that women bear the burden of childcare. This has historically been reflected in tribunal decisions which have held that policies or practices which place additional burden on those with childcare responsibilities (such as a requirement to work full time) is likely to be indirectly discriminatory towards women. However, the recent case of Hacking and Paterson and anor v Wilson challenges this long held assumption. This case concerned a policy of refusing flexible working requests for all property managers. The question arose as to whether this indirectly discriminated against women. The EAT held that tribunals should not just assume that more women than men will be disadvantaged by such a policy. Tribunals should focus on the nature of the disadvantage. For example, if a women's choice to work part time is borne out of lifestyle rather than necessity, is she reasonably disadvantaged by being forced to work full time?

This decision reflects the fact that, in view of the 'gender neutral' legislative developments outlined above, our stereotypical attitudes and assumptions about responsibility for childcare may no longer be valid. The shift is towards men and women bearing this responsibility equally. This is, after all, the basis of true equality, isn't it?

While many will welcome this cultural shift towards 'true equality', it has the potential to cause employers problems if they don't adapt their policies and procedures to match the change of focus. One area recently under the spotlight is the issue of enhanced maternity benefits, and the potential impact this cultural shift is likely to have on the way these benefits are offered by employers.

A new survey conducted by Working Families highlights that many employers still reflect the 'traditional' assumption that parenting is the domain of mothers only. For example, while 91% of organisations surveyed remind mothers of their flexible working options, only 38% remind fathers. Employers should be careful to ensure their policies don't reflect this inbuilt stereotyping, otherwise they may be at risk of discrimination claims from men.

An issue employers will have to consider is whether they should offer enhanced paternity pay and return to work incentives to men on paternity leave. The position taken by the previous Government in its response to consultation on additional paternity leave ('APL') and pay was that, since APL can be taken by employees of either sex, so long as a man taking APL is in the same position as a woman taking APL (for example the same-sex partner of a birth mother) there is no less favourable treatment.

However, this position may now be open to challenge following the recent case of Roca Alvarez v Sesa Start Espana ETT SA (Case C-104/09). In this Spanish case, the ECJ held that a Spanish law giving women the right to time off for breastfeeding was discriminatory. The law was originally introduced to promote breastfeeding, but was subsequently extended to include bottle feeding. The right applied to both mothers and fathers. However, in order for fathers to qualify, the mother had to be in employment (the same restriction did not apply to mothers). The ECJ held that the additional restriction on fathers was discriminatory.

While European law allows women to be afforded special treatment in order to protect their biological condition during and after pregnancy, and to protect the special relationship between a women and her child following childbirth, the right to time off in the Roca Alvorez case was designed to ease the burden of taking care of the child, and not to protect a women's biological condition. In UK law, s 13(6) of the Equality Act 2010 provides that when a man is looking to establish less favourable treatment for the purpose of a sex discrimination claim, 'no account is to be taken of special treatment afforded to a women in connection with pregnancy and childbirth'. It is likely, following the decision in Roca Alvarez, that this provision will be construed narrowly so that only provisions designed to protect the biological condition of women following pregnancy or the special relationship between mother and baby will qualify for this exception.

It is therefore arguable that employers who offer enhanced benefits to women on maternity leave should extend them to men on paternity leave, otherwise it might amount to sex discrimination. This is unless employers can show that such benefits are intended to protect the biological condition of women, or to preserve the special relationship between mother and child. Employers may struggle to do this, particularly in relation to return-to work incentives whose principle purpose is to encourage women to return from maternity leave.

This point is yet to be tested in the UK courts. However, employers who currently offer enhanced maternity benefits should review the purpose of the benefits, and whether this purpose could apply to men as well as women. If the answer is yes, employers should consider removing the benefits from women altogether, or consider offering similar terms to men in order to avoid a challenge under existing discrimination law.

Piers Leigh-Pollitt, partner at Doyle Clayton