Affordability is also a major deterrent and employers, as a whole, have not assisted on this front. Many employers choose to provide enhanced pay to mothers taking maternity leave, whilst offering statutory pay only for those taking shared parental leave. Consequently, it does not make financial sense for a mother to forgo her maternity pay in order to share the leave with her partner. Legally, many have argued that it is unlawful for employers to offer maternity pay at an enhanced rate and shared parental pay at the statutory rate, as this is discriminatory against men.
There have been a number of recent cases on this point and as we write, we await the Employment Appeal Tribunal’s decision in Capita Customer Management Limited v Ali. This is an appeal against a decision by the Employment Tribunal which held that a male employee was subjected to direct sex discrimination when his employer refused to pay him shared parental pay at the same rate as it paid its female employees on maternity leave. The decision of the EAT in this case should provide greater clarity in this area and will no doubt impact on the way employers structure their shared parental pay going forward. Whatever the outcome, it is clear that unless the shared parental pay is paid at the same or a similar rate as maternity pay, it will simply not make financial sense for fathers to take shared parental leave.
Another barrier to couples choosing shared parental leave appears to be the current format of the law. Not only is the law hideously complicated, it also requires the mother to give up her maternity leave in order for her partner to take shared parental leave. Further, any leave taken by the father reduces the mother’s leave entitlement, making it an unattractive prospect for many couples.
Successful international models have shown that in the right environment and with adequate financial support, both parents in many couples will choose to take extended leave after their child is born. In the UK, however, we still have a long way to go to overcome the old-fashioned assumptions about parenting and to make it financially viable. If matters are to change, employers will have a big part to play; they will need to act pro-actively, which means both increasing awareness of shared parental leave amongst the workforce and being supportive of fathers that choose to take it. In reality, such a significant cultural shift is going to take a long time to get traction and in order for any significant progress to be made, it is likely that the government will need to intervene and make some amendments to the current legislation.
