Parental Leave – An Update

Most people are aware that if a female employee is pregnant, she is generally entitled to take up to one year off work, on maternity leave, with (some) pay.

The law also provides that eligible male employees are allowed to take either one whole week or two consecutive weeks paternity leave following the birth of their child, or placement for adoption. This is called Ordinary Paternity Leave (OPL) and is paid at £138.18 per week from April 2014. Male employees eligible for OPL are also likely to be entitled to Additional Paternity Leave (APL) of up to 26 weeks. This is paid to the extent that the child’s mother (or adopter) returns to work early and forfeits maternity pay.

A recent report carried out by the Institute of Leadership and Management concluded that 58% of managers feel that paternity leave is disruptive for their organisation and this is a cultural barrier which prevents the vast majority of fathers from taking more than 2 weeks of paternity leave. Unions have responded to the report and point out that (unsurprisingly) the rate of pay during APL is a major factor in its low uptake.

Employers will be aware that from 2015, changes will come into force that allow parents to effectively share maternity leave and pay.

In other news relating to parental leave, the European Court of Justice (ECJ) has confirmed that a woman who entered into a surrogacy arrangement with another woman was not entitled to maternity leave and pay. The woman (the ‘commissioning mother’) began to breastfeed the baby within an hour of birth and her husband had provided DNA to the surrogate mother. However, the commissioning mother had not provided genetic material herself and nor had she at any time been pregnant. For this reason, her employers – an NHS Trust – declined to allow her maternity leave and pay. She asserted that this was indirect sex discrimination, but the ECJ decided against her because the fact that she had never been pregnant meant that the protection of the law had not been engaged. The ECJ also rejected her claims of direct sex discrimination.