HR has a key role to play in ensuring corporate objectives and business requirements are balanced with the rights of employees. This is critical, especially when planning for new legislation that touches on a potentially sensitive subject. A prime example of this is the Shared Parental Leave Regulations, which came into force on the 1st December 2014.
These new regulations affect parents of children due to be born, or matched for adoption, on or after the 5th April 2015. And, although we won’t see many people taking leave for a few months yet, it is the due date of the child – not the actual date of birth – that is the key point here.
It means early arrivals could lead to some employees being eligible to take leave under this scheme very soon, and HR teams should be getting ready sooner rather than later if they want to ensure they are capable of dealing with this legislation.
There are several key factors HR professionals ought to consider as they steer their organisations through this change. Effective resourcing and training are key to getting things right first time, when requests are received.
Policies and Discrimination
To start with, one of the most important matters to decide immediately falls on the shoulders of organisations that offer contractually enhanced maternity packages. It is important for these organisations to decide whether they will offer any additional payments, beyond the statutory entitlement, to employees that take up shared parental leave and pay. Although it would not be legal to offer a woman on shared parental leave a more favourable package to that of a man taking shared parental leave, the position on offering a differential package between maternity leave, paternity leave and shared parental leave is not clear cut.
The guidance on the Shared Parental Leave regulations, issued by BIS, states that there will not be a requirement to offer a parallel benefit between an organisation’s maternity package and its shared parental package. The guidance is clear that an organisation can continue to offer an enhanced maternity package while offering the statutory minimum for shared parental leave. However, some legal commentators have challenged this position.
The case law most commonly referenced here is that of Shuter v Ford Motor Company – a case that considered whether it was discriminatory to offer a differential, and less favourable, package to a father taking paternity leave, compared to that offered to mothers taking maternity leave. The decision in the case was that it was not.
However, the relevant facts in this case were fairly specific: the respondent argued successfully that the enhanced maternity scheme was set up to address the underrepresentation of women in their business – it is unclear whether, in organisations with a more balanced workforce, the same judgment would have been returned.
HR professionals are encouraged, when deciding how to respond to these issues, to take advice from their legal services provider.
Discontinuous leave and resource planning
With employees eligible to take shared parental leave shortly, employers should be thinking about resource planning in the event of discontinuous leave. This occurs when employees take their leave in blocks, the minimum duration of which is a week; the regulations will allow an employee to take up to three of these blocks, although it is open to employers to allow more than this. The statutory maternity scheme is obviously very different to this, involving a single block of leave and relatively lengthy notification requirements if a woman decides to return earlier to work. This has led to the common practice of employers filling this resource gap with individuals undertaking the absent employee’s role by way of maternity cover. It may be difficult for employers to adopt a similar practice under the new regulations.
HR professionals should familiarise themselves with all the rules surrounding shared parental leave requests, bookings and cancellations, along with what can and cannot be legally refused. It may also be helpful to draw up a policy detailing their organisation’s approach to these requests and bookings.
The effects of this new system of discontinuous leave will be felt more by some industries than others. For those that see seasonal peaks in workload, the flexibility of shared parental leave may be extremely helpful in ensuring the on-site presence of key personnel at important times, without those individuals losing their ongoing parental entitlements. Early engagement in dialogue with employees about their leave intentions will go some way to relieving the burden this new scheme has created.
Training and understanding
While most HR professionals will already be up to speed with how the regulations work, it is important that managerial staff – who will actually deal with such leave requests – are too. This is especially important as it may protect those seeking to take leave from detrimental treatment; a right also protected as an actionable claim under the legislation. Given the complexities of the legislative scheme, it is important that line managers across an organisation receive sufficient training in how the new system will work, and the protections employees enjoy.
Further, strategically considered policies on these new rights – that managerial staff can work through – will soften the administrative burden and reduce the level of ongoing HR assistance required.
Looking Forward
As with any change, the key to ensuring a smooth transition and to reducing risk is planning and preparation. Organisations should be considering their approaches to these challenges now, as opposed to when requests are first received, in order to achieve that healthy balance between managing business objectives and employees’ rights. Policies that take both these matters into account will be paramount in ensuring that the changes have a minimal negative impact on all concerned.
Emma Renke is an experienced employment law litigator who heads up MidlandHR's employment law consultancy team. For more information contact [email protected]
