Will increased paternity rights be a burden to businesses?

Thursday 17th September 2009 Gordon Brown's announcement on Tuesday, 15th September will no doubt present a challenge to employers who are once again being required to accommodate more employment rights seemingly in favour of employees. In particular, the proposals set out in his speech to the TUC, to allow parents to share their parental leave entitlements will have an impact on many smaller businesses who are currently trying to overcome the difficulties faced during the recession.

Since Labour came into power family friendly policies have not been far from the legislative agenda. Paid maternity leave has increased from 18 weeks to 39 weeks and fathers are now entitled to 2 weeks' paid paternity leave. Clearly, flexible working has been seen as a positive advance in recent years. However, whilst allowing parents to share their parental leave rights is being seen as good news for those championing family rights, the business sector is right to have concerns.

As the law currently stands, employed mothers are entitled to take up to 52 weeks' maternity leave regardless of how long they have been working for an employer. However, they are only eligible for statutory maternity pay for a continuous period of up to 39 weeks during that period.

In contrast, employed fathers are only entitled to take up to the 2 consecutive weeks' paid paternity leave, provided they are responsible for the child's upbringing; are the biological father or are the mother's husband or partner; and have worked continuously for the employer for 26 weeks at the end of the 15th week before the baby is due.

The increased maternity rights granted over recent years have already placed burdens on smaller businesses, especially as employed mothers have the right to return to the same or similar job, regardless of the size of the employer. In those circumstances employers have had to consider the most cost effective way of ensuring that the particular role gets done. The options available will depend on the resources available but if possible employers should consider using existing staff who want to work extra hours as maternity cover on a temporary basis. Alternatively, employers may need to go the expense of using agency workers or new temporary employees.


Under the proposals put forward by Gordon Brown, the amount of paternity leave for fathers would be significantly increased as mothers would be able to transfer the last 6 months of their maternity leave to the father, 3 months of which would paid at the same rate as statutory maternity pay. In his speech Gordon Brown stated "… we will give fathers the right to take up to three months additional paid paternity leave during the second six months of a child's life, if the mother has returned to work, because Labour believes in giving couples more freedom, dads more rights and children more time with the two people who love them most ."

In practice, this proposal will not enable both parents to be at home with the child at the same time. It is not an independent right for fathers and each parent would effectively be taking it in turns to stay at home. However, the idea behind the proposal is to give families greater flexibility in how they choose to balance work and childcare, enabling fathers to play a greater role in the upbringing of their child.

It is generally acknowledged that in today's society where the ultimate goal is equality, there is a need for fathers to have more paternity leave rights, if only to help eliminate the gender pay gap. However, given the current economic climate and the fact that many businesses are still struggling to cope with the consequences of the recession, there is an argument that this proposal should have been put on hold.

The difficulty from an employer's perspective is how to effectively manage the situation. Under the scheme, parents would be required to 'self certify' and provide details of their eligibility to the employer. Employers and HMRC would both be able to carry out further checks of entitlement, if they deemed it necessary. In practice, it would be advisable for employers to take a more cautious approach and check eligibility to avoid the few employees who may wish to abuse these additional rights. In those circumstances, employers are going to have to ensure that they have adequate polices and procedures in place.

Unfortunately, the Government has not provided any guidance on whether employers would be expected to contact their employee's partner's employer to check if their own employee is in fact entitled to the leave. It is therefore, hardly surprising that this proposal is being seen in some quarters as further red tape and an added layer of bureaucracy. Again this will have the biggest impact on smaller businesses who do not have the necessary resources to deal with the increased administration caused by yet another change in employment legislation.

The Government has argued that the proposed scheme has been designed in a way that minimises the administrative burdens on businesses. In particular, in order to give employers time to adjust it is envisaged that it will only apply to parents of children due on or after 3rd April 2011, despite the law coming into effect in April 2010. This is of course subject to consultation and the necessary parliamentary procedure.

Therefore, in the meantime, employers should take steps to be as well prepared as possible. In particular, employers should review existing policies to ensure that they include reference to these additional rights. Furthermore, it would be advisable to have procedures in place setting out how they will deal with checking the eligibility of employees who wish to make use of these rights.

Although this proposal will create additional work for employers, it remains to be seen whether fathers who are eligible will in fact elect to take the time off. Employers can at least breathe a sigh of relief that the Government has so far decided not to put forward its proposal to increase statutory maternity pay to 52 weeks.