Eligible fathers (or, in some cases, the partner of the mother) will be able to take up to 26 weeks' additional paternity leave on top of their existing two weeks' paternity leave entitlement, provided that the mother has returned to work.
The regulations will be welcomed by many couples, who for financial or social reasons, might prefer to adopt a shared approach to parenting in the early stages of their child’s life. Some employers, however, have voiced disquiet over the new legislation. In a recent survey of HR professionals, 45% expressed concern over its introduction, citing anxieties over managing the new policy. Despite the Government’s assertion that the rules have been ‘designed to minimise the administrative burdens on business’ it is inevitable that increased resources will be spent on running this new form of new leave. Because leave entitlement will be effectively shared between parents who will usually work for different employers, there may be some cases where one employer needs to verify from the other what leave has been taken in order to assess eligibility for APL.
Other employers may be worried about having to accommodate lengthy periods of absence from work. Although some sectors will be very familiar with dealing with maternity absences, others, perhaps in traditionally male dominated areas of work, might not have had to deal with covering leave to the same extent.
Whether or not these concerns turn out to be well-founded will depend to an extent on the level of uptake of APL. In its consultation process, the Government estimated that between 4% and 8% of eligible fathers would take APL. Whether or not that turns out to be a realistic estimate will be borne out over time. It is clear that cultural and social considerations will have a significant bearing on the level of uptake. But probably the most important factor will be financial. In Sweden, where shared parental leave (which exceeds a year) is paid, uptake by men is far higher. In 2010 it was reported that eight in 10 fathers take a third of the total period of shared leave and 9% of fathers take 40% of the total or more.
In the UK, the period of paid leave is far less generous. An employee taking APL will only receive pay where the mother returns to work before her own paid leave period expires. It is the Government's view that employers who offer enhanced maternity pay do not need to offer the same to fathers taking additional paternity leave, meaning that pay will only need to mirror statutory maternity pay rates. As the father cannot take leave within the first 20 weeks, any paid leave will be at a weekly rate of just under £129 – unless employers chose to offer enhanced pay. This approach could result in disgruntled employees if, for example, a man working in the same department as a woman on maternity leave is not entitled to the same pay in respect of his period of leave.
It is even possible that some employees may argue that it is discriminatory for an employer not to offer the same enhanced pay to those taking APL. There is an exception under the equality legislation that permits ‘special treatment’ of women if the purpose is to protect their biological condition following pregnancy or childbirth or to protect the special relationship between a mother and her child. However, it is unclear if paying a mother enhanced maternity pay to look after her child after the first 20 weeks of maternity leave meets the terms of this exception. This point is likely to be clarified by case law at some stage.
If such a challenge were to succeed, we may see a changed workplace with far more fathers taking leave and with couples effectively picking and choosing which parent should take time off according to which has the better enhanced pay. This changed workplace would appear to be one that the deputy prime minister, Nick Clegg (who has already announced the Government's plans to launch consultation on a further overhaul of shared parental leave), may welcome.
Elaine McIlroy is senior associate in the employment team at Dundas & Wilson