Working practices are evolving to reflect modern society and technological advancements, and it is important that organisations understand what they can and cannot do within the legislative framework that governs UK employment law.
The evolution of working practices is not limited to family rights. This is evidenced by the prime minister, Theresa May, commissioning the Taylor review to look at how employment practices need to change to keep pace with modern business models. This review is taking place against the backdrop of successful claims by two Uber drivers and a CitySprint cycle courier, who argued that they were workers rather than being self-employed. Similar claims are also being brought against other companies in the gig economy, including Addison Lee, Deliveroo, eCourier and Excel.
Research published by Working Families shows that:
- 53 per cent of millennial fathers want to take a less stressful job to allow them to balance the demands of work and family life;
- twice the number of fathers, compared to mothers, believe that flexible working results in being considered less committed by your employer; and
- British men spend 24 minutes caring for children for every hour done by women.
Shared parental leave
Shared parental leave was the government's flagship policy to support working fathers. The uptake of shared parental leave since its introduction in April 2015 has been low, with mums being left to hold the baby. There are numerous reasons for the low uptake, including mothers not being ready to give up their maternity leave, some of the perceptions outlined above, the time it takes for cultures to change, and the financial penalty where employers do not offer enhanced shared parental pay.
The financial penalty has been cited as the most common reason for the low uptake. Not all employers offer enhanced shared parental leave pay. The same can be said for enhanced maternity pay, although it is more common for mums to receive this. The perfect storm in terms of a financial penalty is where a mother's employer pays enhanced maternity pay but the dad's employer does not offer anything above the statutory minimum, or he does not qualify for shared parental leave.
There is no magic solution – but employees do have rights and they should explore all of the options by speaking with their employers. Employers generally will not object to reasonable requests where the request can be accommodated, but employees do need to remember that the primary objective of their employer will be to run a successful business.
Offering enhanced pay for shared parental leave and flexible working allows an employer to position itself as being progressive and inclusive. This can have a positive impact on an organisation’s recruitment and employee retention. It will also reduce the risk of claims for indirect sex discrimination by fathers who do not receive enhanced shared parental pay in a workplace where female employees receive enhanced maternity pay.
No such claims have been tested in the employment tribunal, but a similar claim was lodged in 2014, based on enhanced paternity pay, against Ford Motor Company. The firm was able to demonstrate in this claim that its legitimate aim was promoting the recruitment and retention of women in a male-dominated industry.
The respondent was able to objectively justify its decision not to pay enhanced paternity pay to its employees but this is not a defence that would work for every company, and organisations should think carefully before deciding to pay enhanced maternity pay but not extend that to shared parental leave pay.
Andy Graham is a managing associate in Addleshaw Goddard's employment team