Legal advice after baby loss
In an effort to boost the Government’s family friendly and flexible working policies, Chancellor George Osborne announced on 5 October that shared parental leave (SPL) and pay will be extended to working grandparents. With the details to be consulted on in the first half of next year and legislation due around 2018, it will be a while until the full impact of this extension can be calculated.
However, despite the Government’s positive intentions, will this new policy have its desired effect, or might it pose an additional stumbling block both to working mothers in terms of career progression and remuneration and working fathers who may have been considering taking advantage of the new shared parental leave regulations and may now feel pressured not to?
According to figures released by the Government, nearly 2 million grandparents have given up work, reduced their hours or taken time off to help reduce childcare costs. Additionally, over 60 per cent of working grandparents with grandchildren aged under 16 provide some form of childcare. On the face of it therefore, this expansion seems both logical and positive, giving working grandparents the opportunity to help their children with childcare while having the guarantee of being able to return to their job once the leave has ended.
But in practice, will the impact be so positive? Parents will be able to return to work sooner – which could lead to professional working mothers feeling additional pressure to do so earlier than they would have liked for fear that they may be viewed as less committed to their career, now that they have more childcare options available to them.
Unhappy employees do not make a productive workforce, and this policy may in fact have the opposite effect in causing a detrimental impact on female career progression and pay prospects during their child’s first year and beyond. On the other hand, the path to encouraging working fathers to take time off for childcare reasons has only recently been set upon with the introduction of additional paternity leave (APL) in 2011 and its replacement with shared parental leave and pay in April 2015.
In the first year following the introduction of APL, only 0.58 per cent of eligible dads took advantage of it according to a BIS impact assessment, and numbers do not seem to have improved vastly over time. The take up of SPL by working fathers has not been much greater either. Therefore it is likely that there will be a decrease in fathers taking SPL, when the implication is that grandparents who are coming towards the end of their careers should take over that role instead, at a time when the father should be steaming ahead with his career, now that he has a young family to support. If this does occur, the Government will in fact be taking a backwards step in the fight for breaking down stereotypical gender roles and achieving equality both in the workplace and the home.
This step could turn into a massive leap if the hype of the media headlines is to be believed. Despite the fact that shared parental leave is being extended to grandparents of both sexes, a number of newspapers have referenced ‘granny leave’ – making their thoughts crystal clear on which grandparent they expect to be utilising this leave. While this is more of a societal issue than an employment law one, it does not bode well for what could turn out to be double penalisation of working women of all ages at both ends of their professional career.
On the part of working grandparents, problems also spring up in terms of potential discriminatory practice. The Government has confirmed that grandparents who take advantage of this leave will have a legal right to return to their job - and employers cannot discriminate on the grounds of age. But will this be borne out in practice? The inherent danger in this development is that nefarious employers may put pressure on grandparents to retire early or use it as a (secret) excuse to get rid of older workers, who may be seen as taking their foot off the pedal as they near retirement and focus more on external interests.
And then there are the practicalities. How much take up is there realistically likely to be from grandparents rather than them requesting a flexible working pattern instead? Thanks to the stringent regulations of SPL, leave must be taken in blocks of complete weeks, with a maximum of three separate notification periods. While an employer is obliged to accept a request for continuous leave, discontinuous leave may be refused, meaning that SPL must be taken in its full continuous block. It is difficult to argue that this is truly ‘flexible working’ with all these rules in place. Most grandparents perhaps help out with childcare one or two days a week, or want to work fewer hours to help with school drop off and pick-ups. Flexible working will accommodate their needs better than SPL, which is only available in the child’s first year and in chunky blocks.
And so the question becomes – was this truly the best measure that could have been implemented at this time?
A number of employer groups have already criticised the complexity of the SPL rules and the eligibility criteria also already bars one significant group from participating – that of self-employed people. That is not to say that the new measure has not addressed any problems at all – in particular, single mums who would not have benefitted under SPL will now be able to share their leave with the child’s grandparents. But it is clear that there are glaring holes in SPL which need to be filled.
While this development looks positive on its face, it is hoped that it does not do more harm than good in the long term, in actually discouraging professional working parents from taking leave themselves during their baby’s first year, and perpetuating the stereotypical gender myth that caring responsibilities are still more for females rather than males at both ends of their lives.
Should you have any questions about parental leave or the proposed extension to working grandparents, please contact a member of our Employment Team.
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