Complexity of shared parental leave: case analysis

Amanda Jones, partner at law firm Maclay Murray & Spens, reflects on September’s shared parental leave case in the Spanish courts as the UK government publishes its own draft regulations.

3483557965_fd9e7a1709_oThe publication of the consultation on the draft Shared Parental Leave Regulations in the UK is a timely opportunity to review the decision in the Spanish case of Betriu Montull v Instituto Nacional de la Seguridad Social.

Spanish law provides for a system of ‘shared maternity leave’, similar to that which is to be introduced into UK legislation in for children born on or after 5 April 2015. Under the Spanish shared maternity leave scheme, following a compulsory six weeks maternity leave, a mother may elect for the other parent to take a designated part of her remaining 10 weeks maternity leave. Complementary social security provisions allow for maternity benefit to be paid for leave taken under the scheme.

The facts of the case are straightforward enough. Mr Betriu Montull applied for maternity benefit in respect of the 10 week period following compulsory maternity leave when his son was born. Montull was an employee covered by the Spanish State social security system. His son’s mother was self-employed and was therefore not entitled access to the social security system.

Montull was denied access to the benefit as the Instituto Nacional de la Seguridad Social held that under Spanish law, the right to maternity leave applies to mothers who are covered by the state social security scheme and consequently, a biological father does not have his own separate right to leave, but only a secondary right derived from the mother’s right to leave. In this case the mother did not have the right, therefore neither did Montull.

Montull appealed to the Spanish Tribunal Constitutional on the basis that he believed his constitutional right to equal treatment had been breached. He argued that each adoptive or foster parent has a primary right to maternity leave and that he should so be entitled. Whilst the Tribunal found that its domestic legislation was not contrary to the Spanish Constitution it did make a reference to the European Court of Justice (ECJ) on two matters. Firstly the social security question: whether it was unlawful to exclude a father from shared maternity leave where the child’s mother would not have been entitled to it. Secondly, the ECJ was asked to consider the question of equal treatment.

On the social security question, the ECJ held that EU law does not prevent a member state from enforcing a measure which requires a mother to be an employed person covered by a state social security scheme in order for the father to benefit from a shared maternity leave scheme and related maternity benefit. This is reflected in the draft regulations which have been published for the UK system of shared parental leave. In relation to the equal treatment question, the ECJ determined that it did not have jurisdiction to answer this as EU law does not prohibit discrimination between biological and adoptive fathers in relation to maternity leave.

Despite the intention of the UK government that the administrative arrangements of the proposed scheme would be “as light touch as possible”, the draft Regulations run to an eye watering 29 pages of complex detail with two lengthy supplements (running to a further 42 pages).

UK provisions will allow for up to 50 weeks of shared parental leave (the first two weeks will remain compulsory maternity leave for the mother of the child or four weeks for factory workers) with 37 weeks of pay. Largely, arrangements for shared parental leave will be left to employees and employers to negotiate who will take what leave and when.

At the moment it seems that each parent wishing to take leave will be required to give their respective employers eight weeks’ notice to begin shared parental leave and claim shared parental pay. The leave can be taken in blocks. Parents will be able to make applications to their respective employers to take leave at the same time as each other or separately. Employers are not obliged to agree to the pattern proposed by their employees; the default position will be that leave is taken in an uninterrupted block on a start date of the employee’s choice.

The government announced when the draft regulations were published, that they were aiming to have a new system of shared parental leave and pay which would meet the needs of parents and employers and be as simple to use as possible. Whether this will be achieved remains to be seen. Early suggestions are that the regulations are unwieldy and unworkable. If shared parental leave does become commonplace then this would clearly have an impact outwith the field of employment law, not least the influence on socio-cultural attitudes towards the traditional childcare model.

AmandaJonesMain image credit: https://www.flickr.com/photos/ilianov/

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