‘The Motherhood Penalty’: Shared Parental Leave keeps childcare in the 20th century

Ever heard of enhanced Shared Parental Leave pay? No, didn’t think so.

In 2015, the Government introduced Shared Parental Leave (SPL), a promising new alternative to maternity leave that it was hoped would give parents more choice in how they cared for their children.

It is not to be confused with parental leave, the 18 weeks unpaid time off for parents of under-18s. SPL encompasses 50 weeks of leave (37 weeks statutory pay) available for new parents to take or share as an alternative to maternity/adoption leave.

How did it go?

For all its ambition to challenge tired gender responsibilities, the scheme has been a resounding failure. Despite the government’s best efforts to over-state the numbers, just 3.5% of eligible fathers have taken up SPL, against the Government’s official target of 8%.

But when you look at the options, who can blame them? Unfortunately, for all women’s progress in the contemporary workplace, in the majority of families the primary earner is still the father. Too often the crucial difference between SPL and maternity/adoption leave is that the latter comes with the benefit of enhanced pay, whilst statutory pay for SPL languishes at £600 a month.

Many fathers would relish in the opportunity to assist with those magic early months, beyond their two weeks’ statutory paternity leave. However, the reality is that SPL is often financially nonsensical for ordinary families, especially when mothers can take maternity leave with enhanced pay.

Why aren’t more companies enhancing pay for shared parental leave, and why does it matter?

In short, companies don’t want their key male employees ‘Missing in Action,’ a sacrifice which is both inconvenient and expensive. This vested interest of employers matters because, with families financially disincentivised to share the load, caring responsibilities will continue to default to mothers.

It perpetuates what is known as the ‘motherhood penalty.’ Women lose out on promotions and higher salaries to their male colleagues because they aren’t able to quickly return to work. With higher take-up of SPL, women could take shorter maternity leave and both parents would retain the choice to return to work flexibly.

Surely, it’s discriminatory for companies to enhance pay for maternity leave but not SPL?

Many hoped that the pay disparity between SPL and maternity and adoption pay would be an obvious discrimination case. Instead, we have seen a series of ‘nail in the coffin’ judgements, ruling that shared parental leave is not comparable to maternity/adoption leave, so should not be comparably paid.

There is no statutory requirement for employers to provide enhancement and the government considers that there is no need for employers to do so. The courts agree. The Court of Appeal decided in two cases over recent years that it was not sex discrimination for employers to pay enhanced maternity pay, but only pay SPL at the statutory rate, arguing:

• The primary purpose of maternity leave is the health and wellbeing of the pregnant and birth mother, not the facilitation of childcare, as is the purpose of SPL.
• Nor is it comparable to statutory adoption leave. The Employment Appeals Tribunal recently ruled that adoption leave could also be differentiated because it was about health and safety concerns and parental bonding, not just childcare.

What’s the solution?

• Raising the level of statutory SPL pay. SPL could be paid at the 90% statutory rate for the first 6 weeks, like maternity leave. There is nothing to suggest this is likely to be entertained by the current government.
• A “father’s quota” of paid leave. A period of paid leave that a couple loses unless the father takes it. Quotas exist in most of Scandinavia, with Sweden being the trailblazer. Couples in Sweden have one leave policy, which is paid at 80% of salary. Within that total, each parent has a use-or-lose quota of 90 days and the remaining days can be shared. This policy is a quantum leap from where we are in the UK, but has seen increasing numbers of fathers taking bigger chunks of leave in Sweden.
• Companies should take the initiative: Employers might take the lead and implement enhanced pay SPL policies themselves. Some companies have: not necessarily use it or lose it quotas, but enhanced paid leave that is available to both mothers and fathers. However, these are typically organisations with the money and resources to cover absences and pay.
• Continued hope for legal change. Despite recent losses, courts could eventually identify a point during 52-weeks of maternity/adoption leave at which its purpose shifts towards childcare, and is undertaken by either parent.

Recent legal judgements, privileging time off for women, are holding back equality in terms of caring responsibilities, but are nevertheless lawful. The decisions supposedly favour women, but seem to value us in rather simplistic reproductive terms. Unchallenged, the Shared Parental Leave disaster continues to fuel a deep-rooted social inequality in which women will continue to experience the motherhood penalty.

About the author

Susie Al-Qassab is a Partner and Head of the Employment Team at leading London law firm Hodge Jones & Allen Solicitors. She has over 10 years’ experience and has acted for many senior executives and businesses.

Susie is a regular contributor to Moneybox on Radio 4, demystifying the law and helping to hold rogue employers to account. She is also part of the HJA team providing pro bono advice clinic at Camden Citizens Advice Bureau.