Shared parental leave: Three years on

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The reality of shared parental leave since the recent EAT ruling in Capita Customer Management v Ali

On 11 April the employment appeal tribunal (EAT) ruled in the case of Capita Customer Management v Ali that paying women on maternity leave differently to men on Shared Parental Leave (SPL) is not direct discrimination.

But is this decision positive or negative for employers and working parents, who rely on SPL benefits such as enhanced maternity pay and SPL to help get women back to work after the birth of a child and to encourage more men to share childcare responsibilities?

Following evidence from Working Families, the reasoning behind the EAT’s decision was that the purpose of maternity leave and pay is to protect the health and wellbeing of a woman during pregnancy and following childbirth, as opposed to purely for the purpose of looking after the child as is the principle of SPL. The level of pay is inextricably linked to the purpose of the leave.

The EAT held that the father's situation was not comparable to a woman on maternity leave and therefore paying a father on SPL a different amount to a mother on maternity leave is not considered discrimination.

Had the decision gone in favour of Mr Ali then companies may have had to reduce any enhanced maternity pay schemes to offset the increase in SPL pay. Therefore the ruling will be a welcome relief to many businesses, especially in the face of gender pay gap reporting regulations, and working mums that rely on the additional maternity leave contributions to be able to return to work after having a child.

On the other hand, the EAT's ruling may mean fewer families can afford for women to return to work sooner if the man is the main breadwinner and would have to rely on statutory SPL pay.

Future measures

So if employers aren’t legally obliged to pay fathers on SPL the same as enhanced maternity pay, what more can be done to help men get involved in childcare?

Last month the Women and Equalities Committee made a number of recommendations for workplace reforms to better support working fathers, including increasing statutory paternity pay by 90% of the father’s pay for six weeks, replacing SPL with 12 weeks' dedicated leave in the child’s first year, and paid time off to attend antenatal appointments.

But tackling the issue of SPL and normalising the expectation of equal rights to take leave to care for children are issues that must be addressed at a cultural level as well as tackled top-down through legislation. Parents should also be given choice – different options to choose what best serves the needs of their family.

We’re constantly reading of the importance that workers place on work/life balance. So creating a workplace environment that positively encourages both men and women to embrace flexible workplace policies will have a natural impact on normalising men's ability to share parental leave.

Furthermore, workplaces need to eliminate old-fashioned ‘macho cultures’ that view flexible working and time off to care for children as the ‘mother's responsibility' and assure all employees regardless of gender that any decision to take leave will not be damaging to their career prospects.

Ultimately equality can only be achieved when both men and women have equal opportunity (bar the immediate two weeks after birth) to work flexibly and to take time out to manage childcare responsibilities – with each family free to choose how this works for them.

Julie Taylor is a senior associate in the employment law team at Gardner Leader

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