Children and Families Bill

Memorandum from Fatherhood Institute (CF 112)

A. BACKGROUND

Why parenting leave design matters

The way leave for parenting – Maternity Leave (for mothers only), Paternity Leave (for fathers only) and Parental Leave (available to both mothers and fathers) – is designed signals a nation’s expectations about ‘who does what’ at home and at work. Paternity and Parental Leave are central to involved fatherhood and involved fatherhood is central to gender equality: only with fathers’ full participation as caring parents can women be equal players with men in the world of work. Researchers in Sweden have shown that for every additional month of parenting leave taken by a father, his partner’s annual income increases by 7%. In Iceland, a leave-design of well paid leave in the first year equally shared between parents (three months reserved for mother, three months reserved for father and three months for the parents to share as they wish) has been so successful in transforming gender relations that this is now being extended to five months (mother), five months (father) and two months (share-as-you-will).

A father taking leave for parenting is good for the whole family. The role he plays in the first weeks and months after the birth can affect the way he relates to his child for the rest of their lives. UK fathers who take Paternity Leave are 25% more likely to change nappies and 19% more likely to get up to babies at night than those who take no leave. High father-involvement benefits children and is also linked to greater family stability: a 2009 survey found that 69% of fathers who took Paternity Leave said it improved the quality of family life. By contrast, low father involvement is associated with high levels of w omen’s anger at their partners, low satisfaction among fathers , poorer outcomes for children and family breakdown .

The UK v. other countries

The UK’s leave design (52 weeks reserved for mothers, two weeks Paternity Leave reserved for fathers) is among the most unequal in the world. A recent review of leave in 33 countries found the average length of Maternity Leave to be between three and four months; only four countries (including Ireland and the UK) have Maternity Leave of six months or more. Progressive jurisdictions, as in Scandinavia, tend to have very short Maternity and Paternity Leave (two weeks in Iceland and Sweden) and long Parental Leave (divided into quotas for dads, mums and ‘shared’), all of this well paid.

In the UK the leave is unusually poorly paid. Apart from the first six weeks of Maternity Leave which are fully paid, remuneration is less than the National Minimum Wage (currently £135.45 per week [1] ). The UK spends far less as a percentage of GDP on parenting leave than comparable countries: UK: 0.15% of GDP; Germany: 0.32%; Norway: 0.47%; Sweden: 0.67%.

The UK does not even permit all new parents to share leave. Since 2011 some new mothers have been allowed to transfer the second six months of their Maternity Leave (half of it unpaid) to their baby’s father. When introducing that scheme (known as ‘Additional Paternity Leave’), the Labour Government estimated that only between 10,000 and 20,000 new fathers per year (about 2%) would take it. The numbers who have actually done so are not known but are likely to be lower than even that low estimate, due partly to current financial pressures on families, partly to ignorance of the scheme (it was never widely publicised) and partly to the fact that for a man to take the leave, both he and his partner have to meet specific employment and/or earning requirements. Schemes that require both parents to qualify before one of them can take part inevitably reach only limited populations; and because they offer no ‘individual entitlement’ to leave such schemes have been called ‘parasitic’.

Parental Leave in Modern Workplaces

Almost two years ago (16 May 2011) the Government published a radical document – the Modern Workplaces consultation https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/31549/11-699-consultation-modern-workplaces.pdf - which proposed a Parental Leave system that was not ‘parasitic’. Any individual mother or father who met the employment criteria would be eligible to take Parental Leave. To encourage take up by fathers Modern Workplaces proposed an additional paid month’s Parental Leave to be reserved for the father’s own use: if he didn’t take up this ‘daddy quota’ the family would lose it [2] .

This was not to be. There was strong opposition to the Government’s proposals from employers, trades unions and other organisations that wanted mothers to ‘own’ the whole of the first year’s leave. The Government capitulated and their proposals fell.

B. THE REVISED PROPOSALS

The Government’s compromise proposals have now been published as part of the Children and Families Bill expected to become law by the New Year with introduction of most of the legislative changes from 2015. The proposals relating to fathers are:

Shared Parental Leave and Pay: Clauses 87 & 89 of the Bill introduce Shared Parental Leave and Pay. Effectively, this is a re-naming of the existing parasitic Additional Paternity Leave (i.e. transferable Maternity Leave) with a few ‘tweaks’:

· Some mothers (as well as some fathers) can take it, provided both parents meet earnings and employment criteria

· The transfer of leave from mother to father can happen from 2 weeks after the birth instead of, as currently, 20 weeks

· Mother and father can take leave at the same time

· There is a tiny bit of flexibility: unlike , which has to be taken in one continuous lump, Shared Parental Leave can be taken in blocks of one week (so, for instance, a parent could be off on Parental Leave one week, work the next, then take another week on Parental Leave, and so on). But even this bizarre working pattern (which has been described as ‘disruptive’ rather than ‘flexible’) would not be a ‘right’: it can only happen if both partners’ employers agree.

Who qualifies? A great limitation of the proposed scheme is its ‘parasitic’ design: only when both parents qualify can either one be in receipt of Shared Parental Leave and Pay. But even within that, eligibility is limited and government estimates that fewer than 50% of employed couples where both participate in the labour market will qualify for the scheme. Table 1 (below) sets out the qualifying conditions.

TABLE 1

MOTHER

FATHER

SHARED PARENTAL LEAVE AND PAY

OTHER

MOTHER

Worked for the same employer for 26 weeks in the 66 weeks prior to the baby’s due date and earned a minimum amount in 13 of these weeks

FATHER

Worked for the same employer for 26 weeks in the 66 weeks prior to the baby’s due date and earned a minimum amount in 13 of these weeks

BOTH QUALIFY for Shared Parental Leave and Pay

MOTHER

Self-employed or an agency worker and paid sufficient Class 2 NI contributions

FATHER

Worked for the same employer for 26 weeks in the 66 weeks prior to the baby’s due date and earned a minimum amount in 13 of these weeks

FATHER QUALIFIES for Shared Parental Leave and Pay

MOTHER qualifies for Maternity Allowance (payment of £135.40 weekly for 39 weeks)

MOTHER

Worked for the same employer for 26 weeks in the 66 weeks prior to the baby’s due date and earned a minimum amount in 13 of these weeks

FATHER

Self-employed or an agency worker and paid sufficient Class 2 NI contributions

MOTHER

QUALIFIES for Shared Parental Leave and Pay

MOTHER is self-employed and paid sufficient Class 2 NI contributions OR

worked for the same employer for 26 weeks in the 66 weeks prior to the baby’s due date and earned a minimum amount in 13 of these weeks

FATHER did not meet employment qualifying conditions before the birth but works after the birth –employed, self-employer or a agency worker

MOTHER qualifies for Statutory Maternity Leave and Pay whether or not father works

MOTHER did not meet employment qualifying conditions before the birth and begins work after the birth – employed, self-employer or a agency worker

FATHER is self-employed and paid sufficient Class 2 NI contributions OR

worked for the same employer for 26 weeks in the 66 weeks prior to the baby’s due date and earned a minimum amount in 13 of these weeks

FATHER qualified for Paternity Leave but does not qualify for Shared Parental Leave and Pay or any other benefit when mother works

The government says it will ‘carefully consider’ what type of payment may be available for parents who are not eligible for statutory pay once Universal Credit has become fully operational and has had time to settle down. This will not be before 2018 and there is no guarantee that provision will be made.

We want Parental Leave and Pay to be an individual entitlement available to any eligible father or mother who meets the employment or self-employment qualifying conditions, provided their partner is in the paid workforce

We want self-employed fathers, like self-employed mothers, to have access to payment for parenting (a ‘Paternity Allowance’).

Part-time receipt of parental pay: the ability to work some days in a week and receive parental pay to care for a child on other days in the same week – a feature of many Parental Leave payment schemes in Europe - is not to be permitted under the new scheme. This rules out the possibility of a phased return to work for mothers and the ‘boxing and coxing’ of leave by couples [3] . That kind of true flexibility, which would be welcomed by all stakeholders, is allegedly made impossible by administration-based objections from HMRC and the Department of Work and Pensions (DWP) who, between them, operate a system widely recognised to be ‘creaking’ [4] .

The power of part-time working/part-time receipt of parenting leave to encourage take up of leave by fathers should not be underestimated. Because during a working week both parents would be working and earning their normal wage on work days while receiving parental pay on parental-leave days, it seems probable that more fathers would feel able to afford to take leave – and would take it. This would usher in the longed-for cultural change of re-defining early parenting as a joint, rather than a mother’s, responsibility. It would also give families the flexibility they want and employers the flexible workforce they need. It would reduce the period during which mothers were full-time absent from the workplace (which has such a devastating impact on their later earnings, employment prospects and pensions) and would enable fathers, when in ‘sole charge’ of their infants, to develop high levels of skill and confidence in caring for them.

We want the HMRC and DWP systems to find a way of making it possible for new fathers and mothers to work part-time while receiving parental pay or a parental allowance part-time. [5]

Independent rights for fathers: Under the new proposals, there is to be no additional ‘daddy quota’ leave. Fathers’ existing two weeks’ Paternity Leave remains the only leave that is reserved exclusively for them [6] . The government has indicated that it will seek to bring in an additional period of reserved paid leave for fathers when the economy has ‘properly recovered’. They plan to do this by extending Paternity Leave (i.e. leave taken near the birth, generally while the mother is still at home). Because Paternity Leave is a father’s individual right (and is not dependent on the mother’s work record), far more fathers would quality for an additional ‘daddy quota’ if this were an extension to Paternity Leave rather than if it were an element in Shared Parental Leave and Pay to which, as already pointed out, fewer than 50% of fathers will be entitled. However, if the ‘daddy quota’ can only be taken within the first few months (which will be the case if Paternity Leave is extended), most mothers will still be at home and it will not make financial sense for most fathers to take it. This means uptake will be minimal and cultural change slow.

We want an additional ‘daddy quota’ of four weeks’ paid leave to be available to all working fathers and to be able to be taken flexibly at any point up to 56 weeks after the birth

A ‘Day One’ right: Mothers have a ‘Day One’ right to Maternity Leave (though not to Maternity Pay). However, in order to access even Paternity Leave, a father must be employed for 26 weeks by the end of the 15th week before the baby is due and give notice of his intention to take leave 15 weeks before his baby’s due-date. Many do not realise this and so fail to qualify for their entitlement. This ‘service requirement’ is a substantial barrier to take-up of Paternity Leave by a substantial minority of working fathers who have to rely on ‘time off for dependants’ to be with their partner at the birth.

We want Paternity Leave to be a Day One right for fathers – as Maternity Leave already is mothers

Ante-natal appointments: Clause 97 introduces a right for fathers to take two unpaid half days of leave to attend antenatal appointments with their pregnant partner, with the ability to complain to an employment tribunal if leave is refused. [7] However, we would hope this leave can be paid and the proposed time frame (six-and-a half-hours per appointment) reviewed. This seems unduly restrictive and will require primary legislation to amend. In some circumstances, such as for a local appointment, it would be unreasonable to take six-and-a-half-hours off; in others where, for instance specialist appointments far from home are required, six-and-a-half-hours may be insufficient.

We want to see leave for fathers to attend ante-natal appointments paid and fathers given access to ‘reasonable’ time off (which Regulations could describe in more detail) with the restriction on the amount of time per appointment removed.

Modern Workplaces claims thatthe NHS encourages mothers to invite their partner to attend appointments if they would like support.’ We are not aware of any guidance to that effect and are all too well aware of variability in practice with, in some settings, active exclusion of fathers for no good reason.

We want GPs to be required to include the father’s name on the referral form, where this is safe; and maternity services to be required to invite fathers to at least one antenatal appointment, provided the mother wishes this. Maternity services should also be required to record the father’s name and contact details, where these are known, on the mother’s care plan and to look at offering appointments at times when employed fathers and mothers will find it easier to attend.

Time off for adoption/surrogacy appointments: Clause 98 introduces leave for adopters to meet with the child before placement. Following the existing system, the proposed scheme is highly gendered, allowing for a so-called ‘primary’ adopter to take paid time off for up to five adoption appointments, while the ‘joint’ (i.e. secondary) adopter is only allowed to take (unpaid) time off to attend two. Adoption requires particularly high levels of parent-cooperation and it is ludicrous to treat one adopter as primary and the other as secondary when neither is giving birth. In surrogacy, the new proposals make no distinction between primary/secondary parents: both women and men using a surrogate will only be entitled to (unpaid) time off to attend just two appointments with their surrogate.

In adoption and surrogacy the time-restrictions on appointment attendance may be particularly problematic: six-and-a-half-hours may not be enough to travel across the country to meet and bond with a child or visit a surrogate mother living in a different city, and these issues would be better set out in regulations than on the face of the Bill, so that they can be amended as needs are identified and employment practices change.

We want adopters and couples using surrogates to be able to share this early leave as they see fit, in order to develop connections with the child they are adopting or with the pregnant surrogate. We want them all to be given access to ‘reasonable’ time off (which Regulations could describe in more detail) with restriction on the amount of time per appointment removed.

Raising awareness: as already pointed out, one of the reasons why the current system of transferable (known as Additional Paternity Leave) is so rarely used is that mothers and fathers are unaware of this right. Questioning of the Department for Business, Industry and Skills has not elicited information about a budget for substantial information dissemination about the new scheme.

We want the Government to commit sufficient resources to publicising the new scheme systematically and widely through government channels as well as commissioning third sector organisations to develop and disseminate information.

The right to return to work after taking leave: The ‘rights during and after shared Parental Leave’ will be determined by Regulation. It is important that all the legal protections currently afforded women on Maternity Leave (and men on Paternity Leave) are replicated when they take leave called ‘Parental Leave’. Although discrimination (demotion, side-lining or straight sacking) are common, parents who parent full-time for six months or less are, in law, entitled to return to the same job; after that, the employer must offer the same or an equivalent job. Again in law, though not necessarily in fact, women on Maternity Leave (and men on Paternity Leave) are afforded special protection during redundancy situations.

It is important to ensure that all the current legal protections afforded those taking maternity or Paternity Leave are replicated in the new legislation, and that employers receive a strong message that any parent on maternity, paternity or Parental Leave must be treated fairly.

Remuneration: The current flat rate of pay for parenting leave in the UK (well below the National Minimum Wage, as already pointed out) will only be up-rated in line with other benefits by 1% until 2016, meaning a fall in value in real terms over this period. Demos has found that half of the 27% of eligible fathers who do not take Paternity Leave let it slide because they cannot afford to take it; many more will feel unable to take Parental Leave if this, too, is paid at such a low rate. It is in fact scandalous that only the first six weeks of are paid at above this rate, undoubtedly forcing some mothers to return to work before they are even physically ready. High take up of parenting leave by fathers will only happen if remuneration makes this viable.

Fathers who take parenting leave should be paid at 90% of wages for the first six weeks; and statutory pay levels for maternity, paternity and Parental Leave should be at least at the level of the National Minimum Wage.


C. IMMEDIATE ACTIONS

The minor changes to the current parenting leave regime proposed in the new legislation move more or less in a positive direction; substantive modifications are unlikely to be made in the short term; the system is difficult to understand; and trades unions, employers and some powerful third sector organisations are committed to retaining 52 weeks as Maternity Leave. All this makes the idea of campaigning negatively against the Government’s disappointing compromise proposals unattractive.

Despite the fact that substantive modifications are unlikely to be made, The Fatherhood Institute, Working Families, the Fawcett Society and the Federation of Small Businesses the Fatherhood Institute, together with Working Families and other organisations, has amendments to the Bill. Most of them tally with our proposals above.

If substantive changes are not made and the Act continues the current system of 52 weeks’ Maternity Leave and 2 weeks’ Paternity Leave (with only limited eligibility to Shared Parental Leave and Pay), the UK may be in breach of equalities legislation in Europe. It may well be that a Judicial Review should be sought.

D. LOOKING TO THE FUTURE

The current and proposed systems are not the end of the story. The Fatherhood Institute will continue to lobby for a parenting leave design relevant to modern workplaces and modern families, and that brings Britain into the frame with the best in Europe.

In any campaign, the first step is clarity about its main objective. We suggest that in parenting leave design this should be ‘gender equity’. And rather than focusing on ways to bring women back into the work force after having children, leave design in Britain should focus on providing incentives for men to step out of it.

The regime which has done this most successfully is undoubtedly Iceland which has developed well paid leave with no differential between mothers’ and fathers’ quotas (now, as already mentioned, to be 5 months mother, 5 months father) with minimum choice made available to families (2 months for parents to divide as they like). When Iceland began on this path there was some resistance; now support is substantial. However, while this might indeed move us more quickly towards a gender-equitable society, the challenges of moving to such a system from ‘where we are now’ in the UK seem overwhelming.

Our broad brush proposals for a ‘next step’ leave regime, for which we will campaign, will be to build on the Coalition’s system as follows:

· Paternity Leave of two weeks and Maternity Leave of two weeks (four where a woman is employed in manual labour) are retained

· From that point, leave automatically becomes Flexible Parental Leave, whether taken by the mother or by the father

· This Flexible Parental Leave is an individual entitlement – exercising the right to it does not depend on the employment record of the other parent, but only on one’s own employment record (and the partner’s contemporaneous participation in paid work)

· Flexible Parental Leave can be taken part-time: a mother or father can work for normal wages part of a week and receive Parental Pay during other times of the week when they are in sole charge of their child

· Maternity, Paternity and Flexible Parental Leave are all paid at 75% of wage replacement with a ‘cap’ for higher earners (this is the amount employers can reclaim from the State. They can ‘top up’ the payment to 100% of earnings if they so wish).

· The amount of paid leave available to a two-parent family from one month before the birth to twelve months afterwards is 36 weeks: 10 weeks reserved for mothers, [8] 10 weeks reserved for fathers [9] , 16 weeks for families to divide as they wish [10] . This is a shorter period of paid parenting leave than is currently available to families in the UK, but is much more highly paid.

· Each parent also has an entitlement to one month’s unpaid Flexible Parental Leave as an individual entitlement

· A further 12 weeks unpaid leave are available to either parent, to be divided as they see fit

· As part of this, we will campaign for a greater proportion of GDP to be spent on parenting leave, in line with other progressive European countries

April 2013


[1] Or capped at 90% of salary if this is lower

[2] In other countries a ‘daddy quota’ has been found to be an important element in encouraging fathers to take leave.

[3] Acutely aware of this limitation, the Government is struggling to allow some kind of flexibility through providing KIT (‘Keeping in Touch’) days which would enable parents, if their employers agreed, to work part time for a short period while still receiving full weekly Parental Leave payment. This has been put out to consultation. However, that payment could not be taken part-time and the burden on both employers and parents of trying to understand the system let alone administer it would be enormous.

[4] The issue abo ut computer systems in complex: the Department of Work and Pensions ( DWP ) are the ’owners’ of benefits, including Maternity Allowance . DWP also hold the budget for Statutory Maternity and Paternity Pay . These, however, are administere d through HMRC computer systems because the way employers are reimbursed for their payout of paternity/maternity pay to fathers and mothers is through deduction of equivalent amounts from their National Insurance contributions. This money is then moved from DWP to HMRC budgets – and HMRC can only make the necessary deductions for National Insurance contributions in weeks, not in days. T his is the way the system is set up in HMRC, employers and payroll providers. .

[5] Where there is a will, there is a way: one of the arguments against restricting child benefit to less-well-off couples was that HMRC would find it difficult to administer. They have managed.

[6] Clause 93 of the new legislation provides for regulations to change the notice requirements and length of time for which Ordinary Paternity Pay (to be renamed “Statutory Paternity Pay”) is paid. Regulations may also allow SPP to be taken in non-consecutive periods of not less than one week. (There are already provisions to amend Paternity Leave by regulations).

[7] This small step is welcome, although changes in Legal Aid make it unlikely that any father would complain: he would have to pay £1,200 up front to have his claim heard.

[8] Two weeks of this is , to be taken from the birth

[9] Two weeks of this is Paternity Leave, to be taken from the birth

[10] Mothers can take leave from shortly before the birth, fathers can only take it after the birth

Prepared 26th April 2013