The Shared Parental Leave Regulations came into force in April 2015 and aimed to provide parents with more flexibility in sharing leave during a child’s first year.
They replaced the Additional Paternity Leave regime which had been in force since 2011 and received an extremely low uptake, largely because of the lack of flexibility – fathers could take leave after 20 weeks, but there was no allowance for parents to take overlapping leave or for fathers to take leave early.
The new regime provides huge flexibility. Parents can take leave concurrently or consecutively and can come back to work between periods of Shared Parental Leave (“SPL”). However, three years into the new regime, the take up of SPL still appears to be low – around 1% of those who are entitled to take it have done so to date. However, there are other factors deterring parents from sharing leave in this way and pay is likely to be the most significant.
What is SPL?
SPL allows parents to share up to 50 weeks of leave and 37 weeks of statutory pay. A mother may end her maternity leave, or commit to ending it at an identified future date, and share the remainder of what would have been her maternity leave with her partner. Employees have the right not to be dismissed or subjected to any detriment or discrimination for a reason related to SPL.
Why is uptake so low?
Research suggests that in 2016-17 around 8,700 new parents took SPL. This represents around 1% of those eligible.
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Reasons for the low uptake may include lack of awareness and procedural complexity but there are also significant cultural and financial issues.
Many employers offer enhanced pay above the statutory minimum for those on maternity leave. There is no obligation on employers to mirror this enhancement for employees on SPL and many have chosen not to do so. Parenthood brings an increased level of financial pressure on a family and men may be reluctant to take leave for which they only receive around £140 per week. This is particularly stark if their partner will receive enhanced pay for the same period of leave.
Potential cultural stigma and the negative perceptions surrounding the idea of men taking a long period of time off work to care for children may also add to the low uptake. Although fathers taking SPL are protected from discrimination, it remains very much the norm that women take the bulk of the leave when a child is born and fathers taking long periods of leave fear being penalised and viewed as “unambitious” by their employers.
By contrast, in Sweden, which introduced a shared parental leave regime in 1974, parents can share up to 480 days (16 months) of paid leave – and at least 90 of those days must be taken by the father or they will be lost. Men taking extended leave have become so commonplace that they even have a name – ‘latte pappas’. We have some way to go before we reach this level of equality, but it is certainly something to aspire to.
Is it discriminatory not to enhance SPL pay?
Although there is no statutory obligation on employers to enhance SPL pay where they do so for maternity pay, there has been much debate about whether a failure to do so could be discriminatory. Two cases on this point have now reached the Employment Appeal Tribunal.
In Ali v Capita Customer Management Ltd, Mr Ali claimed that he had been discriminated against because his employer paid full pay to women on maternity leave for 14 weeks but paid only statutory pay to those taking SPL. The EAT held that this policy was not direct sex discrimination.
It was held that the primary purpose of maternity leave (at least for the first 26 weeks) was to protect the wellbeing and health of the mother, rather than childcare, and that any favourable treatment of a woman on maternity leave amounted to special treatment afforded to a woman due to her pregnancy or childbirth which is expressly permitted by the Equality Act 2010.
In Hextall v Leicestershire Police, on similar facts, the EAT held that failure to match enhanced maternity pay may constitute indirect discrimination. A policy can be indirectly discriminatory if it applies equally to all employees but puts a particular category at a disadvantage.
The EAT held that men were potentially at a disadvantage because they do not have the choice between maternity leave and SPL whereas women can choose which kind of leave to take. The case has been sent back to the tribunal for reconsideration on the facts, but in the meantime, employers should be reviewing their policies and should be aware that there is a risk of discrimination claims if they enhance maternity pay and not SPL pay.
What Can Employers do to Encourage Parents to Take SPL?
We will need to see a big cultural shift if there is to be genuine parity between men and women in this area. Employers can influence this kind of change not only by enhancing pay but also by supporting new parents (both mothers and fathers) in other ways.
The big four accountancy firms already offer enhanced pay for those taking SPL and also provide other support for new families, aimed at increasing the number of fathers taking SPL. For example, EY offer career and family coaching for parents taking leave as well as buddy schemes and internal parent networks. KPMG and PwC provide networking and coaching programmes and Deloitte offer a coaching programme directed specifically at fathers.
If more employers were to offer family friendly policies and a flexible working culture where both mothers and fathers are on a level playing field and receive equal amounts in terms of financial and other support, we may start to see “latte dads” of our own.
Beth Hale and Naomi Latham, published in Accountancy Age.
 2014 (SI 2014/3050)
 Research conducted by law firm EMW in 2017
 Mr M Ali v Capita Customer Management Ltd UKEAT/0161/17/BA
 Mr A Hextall v 1) Chief Constable Police of Leicestershire Police 2) Working Families (Intervenor): UKEAT/0139/17/DA