Out-Law News | 04 Dec 2013 | 9:33 am | 3 min. read
Selwyn Blyth of Pinsent Masons, the law firm behind Out-Law.com, said that the logistics of dividing up leave between two parents at different employers would be complex, particularly as parents would have a number of opportunities to change their minds about their patterns of leave. Smaller employers in particular would find it difficult to put the required systems in place, he said.
"It appears from the Government's response to its consultation that this new system will be treated as a statutory right akin to maternity leave," he said. "This means that larger employers, who will already have systems in place for covering gaps in the workforce as a result of the existing parental leave mechanisms, should be able to find a way to cope. However, even for these employers the new system has the potential to create a heavy administrative burden."
"Details of how the system will work in practice will not be available until the relevant secondary legislation and statutory guidance is drafted, but there will need to be some kind of mechanism in place under which both employers would be notified about how the leave will be divided between both parents and any changes would be communicated. Logistically, there will be plenty for employers to get to grips with before the changes come into force," he said.
Although recognising the difficulties the changes would lead to for employers, Blyth said that the Government appeared to consider parental leave as a fundamental right.
"This announcement is part of the Government's stated objective to address the root causes of flexible working being considered as a gender issue - but I suspect we are still some way from that," he said. "It remains to be seen how many new fathers will be persuaded to take advantage of their new right to more parental leave."
The new system is intended to take effect from April 2015, according to the Government. Once in force, employed mothers will remain entitled to 52 weeks of maternity leave, but will be able to choose to return to work after an initial two week "recovery period" after the birth of their child. They will then be able to share their remaining leave entitlement with the other parent as flexible parental leave. Parents will be able to take leave in turns or at the same time, provided that they take no more than 52 weeks combined in total.
Parents would be expected to give employers indicative notice of how they plan to share their leave eight weeks before it starts, in order to "support businesses in being able to plan their workforce". The number of times a parent would be able to notify an employer of their intention to take a period of leave would be capped at three, unless there is mutual agreement: the original notification and two amendments. Employers would be given some ability to veto the proposed pattern of leave and to insist that it is taken in one continuous block.
Changes introduced following consultation would give mothers who opt in to the new system of leave before giving birth the right to revoke their notice to do so up to six weeks after the baby is born. The Government has also restricted a parent's right to return to the same job so that that right only exists where the leave lasts for 26 weeks or less. After this, they would be entitled to return to a "similar job" where it is not "reasonably practicable" for them to return to the same job.
Each parent would also be allowed to take up to 20 days to return to work from shared parental leave on a part-time basis for a limited time under the new system. The principle would be similar to the 10 'keeping-in-touch' (KIT) days currently available to women who are taking maternity leave.
The Government also intends to extend the right to request flexible working to all employees who have worked with that employer for 26 weeks or more, as previously announced. Employers would not be required to grant every request, but would be obliged to consider all requests in a reasonable manner.
The proposals for shared parental leave and flexible working are included in the Children and Families Bill, which is currently before Parliament. Details of the schemes will be set out in subsequent regulations.
Business Minister Jo Swinson said that the new system would "shatter the perception that it is mainly a woman's role to stay at home and look after the child, and a man's role to be at work".
"Thanks to extensive discussions with business and family groups, we have found a workable approach to shared parental leave," she said. "Getting the detail right is crucial if shared parental leave is to drive a real cultural shift and help working dads play a greater role in their child's early months."
"Employers too can gain from a system which allows them to keep talented women in the workforce and have more motivated and productive staff. This new system will also give us a great opportunity to make our workforce even more flexible, helping working families and boost economic growth," she said.