Parental leave reform: a step forward for gender equality

Consultant editor Darren Newman explains why he is in favour of the Government’s proposals on shared parental leave.

The more I look at the Government’s consultation on shared parental leave, the more I like what I see. The very detailed proposals set out in the document Consultation on modern workplaces (PDF format, 826K) (on the Department for Business, Innovation and Skills website) are in welcome contrast to the rather shallow debate about red tape and the future of employment law that we had two weeks ago (see Employment law reform: discrimination compensation and TUPE unlikely to change). The proposals are not aimed at creating a vague feeling that the Government is going to do something about a problem, but are concrete and (mostly) fully thought out. They do not tinker around the edges, but propose a new system of parental leave based on a core of 18 weeks’ maternity leave, a further four weeks’ leave for each parent, and 30 weeks of parental leave that can be taken by either parent. The new system will be flexible enough to allow some of the leave to be taken concurrently, or in instalments. However, the default position will be that leave is to be taken in a single block and a more flexible approach will be allowed only if both employer and employee agree.

This is just the first stage of the consultation and as yet there is no draft Bill (necessary, as this reform needs primary legislation, not just a new set of regulations). The change will not come quickly. The Government is aiming for implementation in April 2015, just before the next general election. Nevertheless, the initial reaction from the business community has been cautious to say the least - although I have yet to see anybody put forward a principled objection to the idea of sharing parental leave. The objections being raised at the moment seem to concentrate on the complexity of the proposals and the administrative burden they will create. I think that this is something of a knee-jerk reaction. If the worst thing that anyone can say about a proposal is that it would create an administrative headache, the proposal is at least worth looking at.

There is a long way to go before this gets on to the statute book, so the business community will have plenty of opportunity to influence the final shape of the legislation and keep the administrative burden to a minimum. In fact, looking at the consultation document, it seems to me that the system that is being proposed will be less prescriptive and less bureaucratic than the system currently in place. I cannot help but feel that the objections that are being made are not based on the idea that the new system will be complicated so much as on the fact that it will be different from the current one. However, if the new proposals are a genuine step forward in helping employees balance work and family life - and if they provide better flexibility for employers - I really do not think that the “administrative headache” argument should be allowed to get in the way.

After all, it is not as though there are no administrative problems under the current regime. Indeed, it has been complicated by the fact that it has evolved slowly through a series of piecemeal amendments over the past 20 years. As the Government's proposals will mean starting over with a blank sheet, this is actually an opportunity for it to write a clear and concise piece of law that gives both employers and employees genuine flexibility.

One thing that this consultation highlights for me is that one person's red tape is another person's sensible reform. It has to be said that the Government has not helped its case for introducing a whole new system of parental leave by spending much of the past few months promising to reduce the burden of red tape for employers in general, and small businesses in particular. Indeed, it is worth noting that in the consultation document - which covers not only parental leave but also an extended right to request flexible working, changes to the Working Time Regulations 1998, and giving tribunals the power to order equal pay audits - the Government has been forced repeatedly to consider whether or not a special exemption should be created for small businesses. This follows the pledge given at the time of the Budget that there would be a three-year moratorium on the introduction of new regulations affecting small businesses. In each case, the Government is of the view that allowing such an exception would be too complicated, lead to an undesirable two-tier system, or deny small employers some of the flexibilities that the new laws will provide. I disagree with none of this, but it does make the Government's moratorium pledge seem somewhat hollow and ill thought out.

I hope that this new consultation will help us move beyond the rather sterile debate about red tape and administrative burdens. Of course the detail of employment legislation should keep bureaucracy to a minimum, but fundamentally we need to look at what employment law is for, and what sort of balance between the rights of employers and employees we want to achieve. In this context, the Government's proposals could, I believe, be a genuine and significant step forward in the cause of gender equality. They may go some way to removing the presumption that the birth of a child will be accompanied by the mother taking a full year off work, and move us closer to a situation where both men and women take a fair share in balancing their work and caring responsibilities. If we agree that this is a good thing, we should welcome this consultation. As the proposals are fleshed out we will need to look carefully at the detailed drafting of the legislation. Inevitably, the eventual transition from the old regime to the new will be tricky. But, in principle, I do not see any reason why the Government's proposals could not be made to work, and work well.

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