Why aren’t more companies enhancing pay for shared parental leave and why does it matter?
The short answer is that companies don’t want their key male employees ‘Missing in Action’ which is both inconvenient and expensive. It matters because without such enhancement, particularly where it is on offer to mothers taking maternity leave, caring responsibilities will continue to default to mothers and workplace inequalities are perpetuated.
Many hoped that there would be a discrimination case to compel companies offering enhanced maternity/adoption pay to also offer enhanced pay to those taking shared parental leave – this hasn’t happened. Instead there has been another ‘nail in the coffin’ judgment recently confirming that the leave is not comparable so should not be comparably paid, building on the premise (flawed in my view) that shared parental leave is for childcare, whilst maternity/adoption leave is different because it’s for health and wellbeing and parental bonding (are they really mutually exclusive?)
Read on for an explanation of the shared parental leave disaster and the pay issues which are at the heart of it.
What is shared parental leave (SPL – not to be confused with the Scottish Premiership!)?
Also not to be confused with parental leave (up to 18 weeks’ unpaid time off for eligible parents of children under 18), SPL is the 50 weeks of leave (37 weeks statutory pay) available for eligible new parents to take or share as an alternative to maternity/adoption leave/pay.
It was introduced by the government in 2015 to give parents more choice and flexibility in how they care for their children.
What is the uptake like?
Abysmal! Despite the government’s best efforts to over-state the numbers, take-up rates among eligible fathers is languishing around 3.5% (4.5% if you also include eligible mothers). The government’s target was closer to 8% (officially) 25% (unofficially).
Why is uptake so low?
The main reason is the low rate of pay. In the majority of families, the primary earner is the father, so even though they may want to take additional leave and share the care (beyond the 2 weeks’ statutory paternity leave available), it is not sustainable to do this on £600 a month (the statutory rate for SPL). Especially not if mothers can take maternity leave with enhanced pay.
The deterrent climate, and lack of awareness and complexity of the scheme are also adding to the issue.
Why does it matter?
Low take-up matters because caring continues to default to mothers, whilst fathers quickly return to work. The ‘motherhood penalty’ is therefore perpetuated. If there was higher take-up, more women would return to work more quickly, gaining promotions and higher salaries after taking shorter maternity leave (if they want to of course, and the key purpose of the scheme is supposed to be choice and flexibility).
We are even seeing declining numbers of fathers taking the statutory two-week paid paternity leave (currently less than 1/3), which incidentally is also only paid at the statutory rate (currently £151.97, or 90% of your average weekly earnings, whichever is lower).
Surely it’s discriminatory for companies to enhance pay for maternity/adoption leave but not SPL?
There is no statutory requirement for employers to provide such enhancement and the government considers that there is no need for employers to do so. They can continued to offer enhanced maternity/adoption/paternity pay without extending it to SPL.
The courts agree. The Court of Appeal decided in two cases over recent years that it was not sex discrimination for employers to pay enhanced maternity pay but only pay SPL at the statutory rate:
- It was not directly discriminatory because men taking SPL cannot compare themselves with women taking maternity leave because their circumstances were materially different (the primary purpose of maternity leave being the health and wellbeing of the pregnant and birth mother NOT the facilitation of childcare like SPL).
- The Employment Appeals Tribunal has also just decided that SPL is not comparable to statutory adoption leave (in this case the claimant was a man taking SPL trying to claim enhanced pay which was offered to women taking statutory adoption leave). The court said that the purpose of adoption leave could also be differentiated because it was about health and safety concerns and parental bonding (not just childcare).
- Even though on the face of it indirectly discriminatory (the policy disproportionately disadvantages men (fathers) more than women (mothers)), the court decided it was lawful; essentially the law allows special treatment for a mother following pregnancy and childbirth, and it was this that was the source of the disadvantage, not the employer’s policy.
These decisions, which allow different policies on family leave pay, do little to tackle the long-standing societal inequality which sees women continuing to shoulder greater responsibility for childcare…..
What’s the solution?
Raising the level of statutory SPL pay? Why shouldn’t SPL at least be paid at the 90% statutory rate for the first 6 weeks like maternity leave? There is nothing to suggest this is likely to be entertained by the current government.
What about ‘a father’s quota’ of paid leave? A period of paid leave that a couple loses unless the father takes it. Quotas exist in most of Scandinavia. The trail-blazer here is Sweden: couples in Sweden have one leave policy. They are entitled to a total of 480 days of leave, 390 days of which are paid at 80% of salary. Within that total, each parent has a use-or-lose quota of 90 days. The remaining 300 days of the 480-day total can be shared. This is an interesting idea, and has led to increasing numbers of fathers taking bigger chunks of leave. The Swedish policy is a quantum leap from where we are now but the idea of a limited period of enhanced paid leave for fathers or for sharing, is a good one.
Companies should take the initiative. Companies can take the lead and implement enhanced pay SPL policies themselves and some have; not necessarily use it or lose it quotas, but making enhanced paid leave available to both mothers and fathers. These tend to be big corporates with strength and depth in their organisation, and their pockets, to cover absences and pay.
Will the courts help? There is hope that discrimination laws can still assist in levelling the playing field so that enhanced leave offered to those on maternity leave or adoption leave should also be given to those taking SPL. At some time in the future, at the very least, the courts may (read should) identify a point during the 52-week maternity/adoption leave period at which it can be said that the purpose of leave is for childcare that can be undertaken by either parent (the same as SPL)?!