Out-Law Analysis | 11 Oct 2019 | 12:36 pm | 5 min. read
Among the topics considered in a new consultation are reforming leave and pay for pregnant workers and new parents; a new right to neonatal leave and pay; and greater transparency by employers around flexible working and family-related leave and pay policies.
The government's stated intentions are to give families more flexibility, increase paternal involvement in childcare and support mothers to return to and stay in work; as well as tackling the employment and gender pay gaps more broadly. It is clear from the consultation paper that the government believes that the legislative frameworks which are currently in place are not delivering, and are not going to deliver on these objectives.
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New minds, new ideas and a new attitude to what the purpose of work actually is means that attracting and harnessing the talent of the emerging and future workforce is a high priority for employers the world over.
While much of the consultation focuses on the impact of traditional gender roles and the different leave and pay entitlements of mothers and fathers on some of the government's policy objectives, this model does not reflect every family. Although this article uses 'mother' and 'father' for ease, the objective of enabling parents to better balance work and family life is relevant to all parents and all families.
New minds, new ideas and a new attitude to what the purpose of work actually is means that attracting and harnessing the talent of the emerging and future workforce is a high priority for employers the world over. Increasingly, we are asked by our clients to help them prepare the culture of their organisation for this change. We are very much encouraged by the government's consultation, and look forward to seeing the final recommendations.
As a reminder, current UK family leave and pay entitlements are as follows:
The consultation does not set out any firm proposals to reform current family leave and pay entitlements, but instead seeks views on the benefits, costs and trade-offs to reform more generally. The government's view is that allowing more women to combine having a family with pursuing their career, and enabling men to play a greater part in childcare, will have both social and economic benefits, ultimately boosting economic growth and reducing the gender pay gap.
The government is seeking views on the interplay between paternity leave and pay and its policy objectives; and the success of its flagship SPL policy, introduced in 2015. Work by the Women and Equalities Select Committee has suggested that sharing care more equally between fathers and mothers will be instrumental to tackling the gender pay gap and improving maternal workplace participation, while its research found that many fathers are keen to take on their fair share of caring responsibilities. Despite this, only 9,200 new parents, or 1% of those eligible to do so, took shared parental leave in 2018, according to the TUC.
There are several reasons why the current SPL system may not be working. The rules are seen by employers to be complicated, according to the CIPD. Fathers themselves may feel reluctant to take leave they see as 'belonging' to their partner. In addition, if the mother's employer offers enhanced maternity pay, there will be a financial disincentive to families for her to lose this by ending maternity leave so that the father can take up SPL paid at a lower rate.
One model considered by the government is that in use in Iceland, where there is no concept of 'maternity' or 'paternity' leave. Instead, each parent is entitled to three months of non-transferable leave, with an additional right to another three months of leave to be split between the parents as they wish. Mothers are required to take two weeks off work immediately following the birth of their child, but are allowed to take up to one month before birth and the balance afterwards. There is no obligatory period during which the mother's partner must use their leave. Iceland is planning to extend parental leave to 12 months by 2021, although it has not yet settled on a model for doing so.
Other factors that have an influence on parental behaviour include the availability and uptake of flexible working at the employer; employers' willingness to offer contractual enhanced parental pay; and the availability of childcare, including informal arrangements.
The government intends to create a new right for parents of babies who require more than two continuous weeks in neonatal care following birth to receive one week of neonatal leave and pay for every week that their baby is in neonatal care, up to a maximum number of weeks. This would effectively extend existing statutory maternity, paternity or adoption leave by the duration of the neonatal leave.
It is proposed that the right to neonatal leave would be a 'day 1 right', so there would be no qualifying period of employment for the parent before the right becomes available. The entitlement to neonatal pay would be the same as that for statutory paternity pay and shared parental pay. The government consulted on this proposal between July and October.
This part of the consultation takes forward the government's commitment of October 2018 to consider creating a duty for all employers to assess whether a job can be done flexibly and to make that clear when advertising; and to consult on requiring employers with more than 250 employees to publish their family leave and pay policies. The employee threshold aligns with that applicable to the gender pay gap reporting regime.
One model considered by the government is that in use in Iceland, where there is no concept of 'maternity' or 'paternity' leave. Instead, each parent is entitled to three months of non-transferable leave, with an additional right to another three months of leave to be split between the parents as they wish.
The government is seeking views on whether employers should be required to publish their family leave and pay, and flexible working policies, on their website, or on a central website like the gender pay gap reporting portal; as well as whether it should be mandatory to publish this information. The consultation is also seeking views on what information about whether a job can be done flexibly should be included in the job advert and how, and by whom, this requirement should be enforced.
The European Council recently adopted a directive on the work-life balance of parents and carers. Member states must implement this directive by 1 August 2022, although the UK's departure from the EU may mean this legislation will not be implemented here.
The directive covers the following:
Susannah Donaldson and Erica Kinmond are employment law experts at Pinsent Masons, the law firm behind Out-Law. Additional contributions from Kieron O'Reilly of Brook Graham, the diversity and inclusion consultancy owned by Pinsent Masons.