Shared parental leave is a topic typically met with hesitancy and scepticism, notably from employers concerned about increased flexibility affecting their ability to hire fixed maternity cover and the risks associated with an inability to police the proposed system.
Although the right to shared parental leave is now widely available in many countries, the UK has “dragged its heels” in rolling out a similar system. However, this is all due to change in April 2015 when an equality focussed policy will come into force aimed at assisting women in their return to work and allowing men to be more involved in bringing up their children.
The current system of parental leave is arguably sufficiently generous and gender-neutral as it entitles each working parent up to 18 weeks’ unpaid parental leave at any time before the child’s 5th birthday, in addition to any statutory leave entitlement.
The proposed shared leave policy will entitle parents up to a total of 52 weeks off work after the arrival of a child, which can be arranged flexibly so that the mother can transfer as much or as little of the remaining 50 weeks off (after her 2 weeks compulsory leave) to the father as they wish. The leave can be distributed between mother and father in chunks over the course of the year or each parent could take 25 weeks off at the same time.
Most European countries already allow parents to share unpaid leave with some countries specifically reserving leave for fathers. However, a recent ECJ case has emphasised that a father merely has a secondary right to shared leave, derived from the mother’s right to leave.
In the recent case of Betriu Montull v Instituto Nacional de la Seguridad Social (INSS) C-5/12, a father applied to benefit from 10-weeks’ shared leave available under Spanish law. The INSS refused on the basis that the mother was self-employed and was not covered by the state social security benefit, which in turn, meant that Mr Montull had no benefit.
On appeal to the ECJ, it was held that a national law which requires a mother to be an employed person in order for the father to be entitled to shared leave did not contravene the principle of equal treatment under EU law.
The ECJ’s decision confirms that EU law does not prohibit a system of shared parental leave. However, it arguably restrains the extent to which equality can ever be achieved, given that a father’s right to shared leave ultimately depends on whether the mother is an employee, regardless of the father’s employment status. The timely decision however, also offers some degree of comfort to UK employers nervously awaiting the impact of the proposed shared parental leave provisions.