Vedder Thinking | Articles Five Things to Know About Family Leave in 2019
29 January 2019
As published in Personnel Today on January 10, 2019.
The area of family rights will continue to be a hot topic in 2019, both in terms of new cases and the family in society at large. Esther Langdon and Danielle Garland from law firm Vedder Price look at this year’s trends and how employers can prepare.
1. Expect more claims about entitlements to enhanced paternity pay
Family leave entitlements had been static for a while, with the ideas of maternity, paternity and adoption leave pretty embedded. Then shared parental leave (SPL) was introduced in 2015. There was a very low take up initially (cited by a recent government report at as little as 2%). From the start, the SPL rules were criticised by many as overly technical and as providing fruitful ground for misunderstandings and claims.
The first few cases looking at SPL proved these predictions right. Two cases, Capita Customer Management v Ali and Hextall v Chief Constable of Leicestershire Police considered whether it is unlawful discrimination to pay men on SPL at a lower rate than mothers on maternity leave.
In the first case, Ali brought a claim for direct discrimination after he was told by his employer that, under their policies, he would not be paid a rate of pay equivalent to what a woman would get on maternity leave if he took SPL. The EAT said that statutory maternity leave (SML) and SPL were different types of leave with different purposes, namely that SML is focused on the health and safety of the new mother whereas SPL is to provide care to the child.The EAT concluded that there was no direct discrimination in the employer’s policy.
In Hextall, a man brought a claim alleging indirect sex discrimination, as he received a lower rate of pay on SPL than a female police constable on maternity leave would have been entitled to.
In contrast to the Ali case, the EAT found in Hextall that the reasons why a woman on maternity leave is not a proper comparator in a direct discrimination claim and is no answer to an indirect discrimination claim, so they called for this case to be heard by a new employment tribunal.
These issues are clearly not dead in the water, and we can expect more cases testing and clarifying entitlements under SPL during 2019, and arguing that it is indirect discrimination to enhance maternity pay but not shared parental pay.
Added to this is the fact that employment tribunal claims have shot up since the abolition of fees – recent statistics suggest a 165% increase in single claims – and so we can expect to see more. Employers need to be prepared for the increased likelihood of any policies treating mothers and fathers differently to be challenged, to assess their risk and exposure and to formulate their position.
2. The family is changing – the law will need to keep up
SPL was introduced partly in recognition of the fact modern families work in all sorts of ways. The cases above, which saw men bringing claims for paternity pay, form part of a wider discussion about the whole topic of family rights in the 21st century.
There is no “traditional” when it comes to families. Traditional concepts, such as that of the primary caregiver, are increasingly blurred. Employers, and the law, will need to adapt to reflect this reality.
The courts have already grappled with some of the legal questions posed my modern family set-ups. Good examples of this are found in the cases which look at what constitutes “family life” for the purposes of the European Convention of Human Rights.
These decisions show how every family is unique and not all fit neatly into legal categories. In X, Y and Z v UK, the court held a family life existed between a post-operative female-to-male transsexual and a child conceived by his female partner through IVF.
However, the court has not seen family life as existing where a child was born to a lesbian couple through artificial insemination.
Modern families also raise interesting legal questions in the employment sphere, for example, the cases looking at the rights to family leave of various parties to a surrogacy arrangement, and how treatment for IVF should be treated in terms of family employment rights.
Employers should think about how they want to handle situations which do not fall squarely within the confines of the legal framework, and whether they want to go above and beyond the strict legal interpretation of some statutory rights.
An important part of this is feeling confident with speaking about these – sometimes sensitive – issues. Employers may also want to think about how differences can be celebrated and how to create a culture that embraces open discussion.
3. Family policies can benefit more than just the employee
Organisations increasingly use innovative ways of attracting and retaining the best talent. Having in place generous family policies, which go above and beyond the legal requirements, can be a very powerful tool.
Generous family policies show that employers understand their employees’ needs and lifestyles. They can also be a way for them to demonstrate a practical and meaningful commitment to equal opportunities, diversity and inclusiveness.
Many large UK employers have recently rolled out more generous return to work schemes for caregivers, and have seized the chance to do so publicly.
For example, Virgin Management Limited announced that it offers employees of both sexes up to 52 weeks’ full pay as part of their parental leave policy. Although this may be one of the more generous policies out there, for many employees this could swing their decision on whether to join or stay at a certain employer.
Other innovative approaches could include leave for grandparents, despite this not being progressed in legislation.
Last year also saw the government announce that it will consult on the possibility of requiring large employers to publicise their parental leave and pay policies.
This follows a recent trend towards pay transparency generally and has been spearheaded by MPs who believe that greater transparency of family policies would ultimately support parents in the labour market.
Although the regulatory requirements may seem far off, we may see some employers publishing their family policies on their websites during 2019 so that they are ahead of the curve in winning the war on talent.
4. It’s OK to talk about pay
The times when it was frowned upon to discuss pay are over. This is both at a personal level – between colleagues – and at a national level, where there are many initiatives pushing pay transparency. Gender pay reporting is now becoming embedded and is beginning to drive changes within organisations.
The government is currently consulting on whether to introduce ethnic pay reporting, and there has been talk of requiring employers to report on how pay relates to other protected characteristics, such as disability and sexual orientation. Executive pay reporting is also in the pipeline.
This will soon see listed UK companies required to publish their “pay ratios” (the difference between chief executive and staff pay).
This increase in pay transparency across the board is a big cultural shift. It is related to policies on pay for family leave, and we anticipate that it will embolden employees to be more confident about raising these issues and pressing for more.
The trend of some employers already voluntarily publicising family leave pay details looks set to continue and may gather momentum as employers are required to collate and analyse pay issues more widely.
5. Protecting the bereaved & increasing special leave
The government is currently drafting regulations which will make up the Parental Bereavement (Leave and Pay) Act , which is expected to come into effect in April 2020.
This new legislation will create a statutory requirement for employers to provide two weeks’ paid bereavement leave over a 56 week period, which will be available to take as a single block, or as two separate weeks, following the death of a child.
Although this new legislation extends the current law in this area, the government is also encouraging employers to consider how they can provide enhanced bereavement and special leave provisions in their own policies.
Leading the way, Mayor of London Sadiq Khan recently announced that he will give City Hall employees additional leave rights if their child is born premature or sick. Given this, employers may wish to spend some time formalising and/or reviewing and updating their bereavement and special leave policies in 2019 so that they stay ahead of these legal developments and can support employees as much as possible during these difficult periods.
2019 looks set to continue these conversations and developments around working families.
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