Maria Hoeritzauer, a partner at Crossland Employment Solicitors, considers how to tackle this thorniest of daddy issues.
Shared parental leave (SPL) was introduced in 2015 to encourage the sharing of parental responsibilities and to break the stereotypical assumptions that childcare is always the ‘mother’s role’. It’s available for those who are having a baby, using a surrogate to have a baby, adopting a child or fostering a child who there are planning to adopt and must be used in the first year of the baby’s life or placement. It can be taken all at once, or in up to three blocks.
A benefit of the scheme is that potentially both parents could be off together, or they could be off at different times. To utilise SPL the employee must meet the eligibility criteria (which differs between birth parents and those adopting or using a surrogate), give notice to their employer that they wish to use it and the mother must have given up a corresponding amount of her maternity leave to allow her partner to ‘share’ it.
But, the uptake of SPL has been very low among fathers. There are, I believe, three primary reasons for this: financial, lack of awareness and actual, or perceived ‘stigma’ that it will impact their career or future work prospects.
While many employers offer enhanced maternity pay, that is not the case for SPL. For many parents, taking SPL will in turn mean a significant drop in income which may outweigh the perceived benefit of the scheme. Although ever-growing numbers of employers are now offering enhanced SPL pay there is no obligation to do so, nor is it unlawful or discriminatory to offer enhanced maternity pay but not enhanced SPL pay.
Paying enhanced maternity pay but statutory SPL pay has now been challenged in the employment tribunals several times because at first glance, it would appear to be potentially discriminatory on grounds of sex. Yet on each occasion, the courts have determined that it is not discriminatory because it is not appropriate to compare a male partner with a female who has given birth, as maternity leave is there to protect the mother and give her time to recover from the experience. (Ali v Capita Customer Services Management Ltd and Hextall v Chief Constable of Leicestershire, both in 2019).
But in addition to the potential financial ‘penalty’ of taking SPL, it appears there is a far more fundamental issue and that is lack of awareness. Although the scheme has been in place for some seven years now and some global organisations have trumpeted their SPL schemes (and enhanced pay), many businesses, employees and managers are simply unaware of it and as take-up has been so low generally employees are not hearing of colleagues taking it. This lack of awareness means that many managers and businesses are not able to ensure their staff know about the scheme and encourage staff to consider taking SPL.
The effect of this is enhanced if managers are wary of SPL because it means staff are off for significant periods of time, whether in one block or multiple blocks of time, particularly if doing so might affect financial targets for example in sales or other billing targets. Historically, there was also something of a stigma attached to men taking any kind of family leave and there may be sectors or managers who still have an inherent suspicion of SPL or indeed, find it logistically difficult to manage multiple SPL breaks. While this may be less of an issue now with younger generations typically being interested in taking a much more hands-on approach with their children, coupled with the experience of two years of the pandemic lockdown where families were forced to share the responsibilities. But an employer’s best intentions will be undermined if managers are unwilling to be flexible or do not engage proactively with requests for SPL.
Employers could also increase awareness both through the inclusion of wording in the employment contracts and in their policies, as well as training managers on all types of family-related leave and how to respond to SPL enquiries.
The final and most obvious step is to alleviate the financial impact by offering more than just the statutory SPL rate to partners and potentially, opening the SPL scheme to all partners, even if they do not satisfy the statutory length of service criteria for SPL. What is your employer doing?