Economics dictates in many cases it is still the mother who will take the time off to care for a young child. Only mothers will be eligible for the 90% enhancement of SMP for the first six weeks of maternity leave, which creates an immediate financial incentive for the mother to take that time off.
A problem area – in my view – is the absence of any express statutory requirement to equalise occupational maternity pay and pay for shared parental leave. Many employers enhance statutory maternity entitlements but will be disinclined to do so for shared parental leave, perhaps fearing that there would be a massive take-up of such entitlements from eligible male employees.
With the new legislation silent on this point, the rights of partners to the same pay as mothers will have to be hammered out through Equal Pay and indirect sex discrimination challenges. The upshot is that in many cases families will be better off with the mother staying at home. Until the root causes of this situation are addressed it is naïve to expect men to play an equal role in the early months of child-rearing.
As a working mother, what concerns me is that the ability of a partner to take shared parental leave could start to erode the current level of acceptance and expectation in the workplace that women are likely to take 12 months off work when they have a baby.
I have a number of female colleagues in the legal profession who are currently taking the full 12 months maternity leave. Will there be the same degree of tolerance if employers start to think 'Why does she have to be the one taking all the time off?'. How might it damage a woman’s career if she's perceived to have chosen to remain off work for a year, contrary to the new “norm” of sharing the time with her partner?
Finally, I worry about the position of the trail-blazing men who elect to take a prolonged period of parental leave. I suspect that some employers are going to struggle with this concept, and feel that this is absolutely a career decision on the part of those employees. Men being discriminated against for their childcare responsibilities would be novel – but it is hardly the kind of equality we want to achieve. I am all for a level playing field, but I fear that this particular field is about to get leveled down, rather than up.
Lucy McLynn is a partner at commercial law firm Bates Wells Braithwaite
