All employers should be well aware by now that shared parental leave is now available for both mothers and co-parents during the first year of their child's life, and that the eligibility and notification requirements for employees who want to take the leave are complicated to say the least. Here are a few of the potential problem areas (both legal and practical) with the new regime:
Discrimination by not enhancing pay
The big one, which all employers who offer enhanced maternity pay are going to have to grapple with, is whether not to offer enhanced shared parental pay, and whether not doing so will discriminate against male employees. Shuter v Ford suggests that it won't be direct discrimination, but that was only a first instance Tribunal decision and related to the now-defunct system of additional paternity leave. There is a view held by some commentators that this is not the end of the story, and that at least during the later stages of maternity leave there will be no material difference between the circumstances of a woman on maternity leave and a man on shared parental leave, making a woman on maternity leave directly comparable to a man on shared parental leave for the purposes of a direct sex discrimination claim. In any event, claims of indirect discrimination ought to be possible against many employers who enhance maternity pay on the basis that not enhancing pay for anyone who takes shared parental leave (regardless of gender) puts male employees (who may be more likely than female employees to take shared parental leave) at a disadvantage as a group. The onus will fall on the employer to show that the policy is a proportionate means of achieving a legitimate aim. This will be a highly fact and employer-sensitive exercise, and is an area ripe for litigation.
Discrimination against trailblazing men
The right for a male employee to take a significant period of time off to look after his baby is a big change, and employers' attitudes to men who take shared parental leave will be in the spotlight. Some managers who are faced with requests for long periods of leave from male subordinates will be more enlightened than others and it may take some time for employers to adapt. Employers will need to take care to ensure that there is no difference in the way managers deal with a trailblazing male employee who exercises this right when compared to a female employee who does so, in order to avoid claims of direct sex discrimination, or of detrimental treatment for having exercised the right to take shared parental leave.
The whole system is intended to be one of "self-certification" - the employee certifies to the employer that her partner meets the eligibility criteria to enable her to take shared parental leave. Where both parents are entitled to shared parental leave and pay, they each certify to their respective employers the amount of leave and pay that the other is planning to take from their communal "pot" of 50 weeks' leave / 37 weeks' pay. Whilst employers are entitled to ask their employees for the name of their partner's employer, so that they can check whether the information provided is correct and the system is not being abused, the idea is that employers do not need to do so as a matter of routine and the system will work on trust. However, many employers will be concerned that if they do not make the optional checks in every case, the system will be open to abuse. This means yet another administrative task for employers in an already extremely admin-heavy process. Businesses will need to be very organised to successfully navigate the new system.