By Daniel Hunter

The Government needs to provide more information and further clarity on how it intends to introduce measures which would allow new mothers to share their maternity leave with their partners, according to national law firm, Irwin Mitchell.

Under the plans announced a new system of flexible parental leave will be introduced from 2015 which will provide parents with the right to determine how they care for their new baby or adoptive child during the twelve month statutory maternity or adoptive leave period.

The mother will be able to elect to go back to work early and effectively transfer the remaining statutory leave, and pay to her partner. Alternatively, the couple may decide that they wish to take time off together to care for the baby.

There are a couple of restrictions to this “mix and match” approach:

· A woman cannot return to work for the first two weeks following the birth;
· The maximum leave that can be taken by both parents is 52 weeks; and
Each parent will need to meet the qualifying criteria for leave and/or pay in their own right. Where possible, these qualifying criteria will mirror the criteria for existing entitlements such as maternity pay and allowance and paternity pay and leave.

Ordinary statutory paternity leave is expected to remain at its currently level of two weeks, but will be reviewed in 2018.

Possibly of greater significance is the Government’s decision to extend the right to request flexible working to all employees — not simply those with caring responsibilities. This will enable for example, grandparents and those who care for other people’s children to ask to work flexibly, including term time, compressed hours etc. The right is to make a request — not for the right to work flexibly and businesses will still be able to turn down applications applying the existing principles.

Irwin Mitchell’s specialist employment lawyers have joined unions and business organisations in welcoming the plans, but also warned that much work needs to be done to ensure that the introduction of such proposals runs smoothly.

Tom Flanagan, the Firm’s National Head of Employment, outlined: “These proposals are a strong sign that the Government wants to make significant strides towards ensuring that parents have a more flexible approach to working.

“While this is great news for new parents, it is vital that the interests of employers are not forgotten.

“It is particularly important that ministers are able to provide comprehensive guidance on how this system of parental shared leave will be organised between the employers of each parent. We already have a system in place whereby a woman can transfer some of her maternity leave (and remaining pay) to her partner twenty weeks after the baby is born. So businesses may have some experience of dealing with shared leave. However, this system is likely to be more complex, particularly where the parents elect to stay at home together to care for their child. For example, how will the 39 week statutory maternity leave be allocated? What happens if the parents change their mind? These aspects alone are far from straightforward.

“In addition, businesses will be anxious to ensure that employees are required to give them sufficient notice of how they wish to share leave if they intend to depart from the from the default position which will remain that women are entitled to take 52 weeks maternity leave.

“Whilst the principle behind this proposal is a sound one, the reality for many parents is that they cannot afford to take full use of their maternity leave, principally for financial reasons. Statutory payments are limited to 90% of full pay for the first 6 weeks, followed by 33 weeks at a set rate of £135.45. It will therefore be interesting to see whether many parents chose to exercise this new right.”

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