Parent power
Recent government announcements and ECJ case law mean that public sector employers may be wise to wait before they choose not to enhance paternity leave schemes, writes Sarah James.
When the coalition government came to power, it reviewed whether or not to introduce the rights to Additional Paternity Leave and Additional Statutory Paternity Pay which had been tabled by the previous government.
It has now been confirmed that this scheme will still come into force as proposed, although this is just an interim measure while the government consults on a whole new system of flexible shared parental leave, to come in from 2015, (as announced by Nick Clegg in a speech in January 2010 – watch out for a consultation on this issue, coming soon.)
The scheme will affect parents of children due on or after 3 April 2011, and will in effect give couples the right to share maternity leave of up to 12 months between them with the right of employed fathers being to take up to six months’ extra leave when the mother returns to work. If the mother returns to work after six months the father (who is likely to be working for another employer) is then entitled to up to a further six months paternity leave. If the child’s mother, or the main adopter in an adoption situation, ends his or her period of maternity or adoption leave before using the maximum entitlement to 39 weeks’ statutory pay, the employee taking additional paternity leave is entitled to be paid for the remainder of the 39-week period at the relevant statutory rate, assuming that he or she has a qualifying level of earnings. In effect, the couple are paid for 39 weeks between them.
Many employers operate maternity leave and pay policies which enhance the basic statutory entitlements. Employers can provide for contractual paternity pay on more generous terms than the statutory minimum, but are unlikely to wish to do so in the current economic climate. The current government guidance is that it will not be discriminatory not to enhance statutory paternity pay to match contractual maternity benefits.
However, a decision in the European Court of Justice from Spain may call that position into doubt. It deals with Additional Maternity Leave as "transferable" to the father in the form of Additional Paternity Leave and not as a right needed to protect the biological condition of the mother. This could form the basis of an argument that where the mother’s employer, A, pays enhanced maternity pay but the father’s employer, B, does not enhance the paternity pay to the same level as paid by company A for the mother’s maternity pay that this is sex discrimination.
Given this uncertainty, which is exacerbated by the fact that public sector employees can draw down direct rights from the relevant equality directive, and that from April 2011, public bodies will be subject to the “public sector equality duty” – which covers how they act as employers, some public employers may prefer to choose not to enhance paternity leave schemes now, but wait for further guidance.
Sarah James is a lawyer in the employment team at Dickinson Dees (www.dickinsondees.com). She can be contacted by email atThis email address is being protected from spambots. You need JavaScript enabled to view it..
