Flexible maternity and paternity leave: Getting it right - as published in Edge online

Netflix, the US based video streaming company, has hit the headlines following its recent announcement that all staff are to be offered the chance to take up to 12 months paid parental leave. This will apply across its global workforce, including in the UK. 

The idea is that staff will be able to work part-time, full-time or dip in and out of work as suits them. Whatever working pattern they adopt they will be paid in full, as if they were working normally. 

The idea of mixing leave and work in the twelve months following birth or adoption resembles the new system of shared parental leave, recently introduced in the UK. However, the Netflix scheme goes much further. Whilst under the shared parental leave scheme, parents have 12 months leave to share between them, the Netflix scheme gives mums and dads 12 months’ leave each. In addition, the Netflix scheme provides for full pay for 12 months, whereas parents who take shared parental leave may share 39 weeks’ pay between them and only at the statutory rate of £139.58, although some employers enhance this.

Whilst successful companies the size of Netflix might be able to afford such generous staff benefits, many smaller employers will not have this luxury. Nevertheless, they might want to consider the option of offering it to some, but not all of their staff. Netflix’s reasons for introducing the policy were to help with recruitment and retention in a highly competitive market. It also believes that staff perform better at work if they are not worrying about family and finances. These goals will resonate with many employers. 

Employers considering offering this benefit to selected employees need to be careful not to fall foul of discrimination laws. 

Discrimination risks

Women only

First of all, you can’t generally decide to offer the benefit to one sex only. This will amount to direct sex discrimination. It might be possible to offer the benefit only to women on maternity leave. This is because preferential treatment of women on maternity leave doesn’t generally constitute unlawful direct discrimination against men. If, however, the woman is on some other form of parental leave (not maternity leave), the benefit will have to be offered to men as well. 

A man may also claim that a policy of only offering the benefit to women on maternity leave indirectly discriminates against men. Indirect discrimination claims can be defended if the policy can be objectively justified, for example the wish to attract women if they are under-represented in your organisation. You would also have to show that you can’t achieve this aim by less discriminatory means.

Senior roles only

Employers may consider offering the benefit only to those in senior roles where it’s more difficult to recruit. If there are more men than women in senior roles in your organisation this could again give rise to arguments that the policy is indirectly discriminatory, this time against women. The desire to attract and retain the best talent may justify the policy, again provided that this can’t be achieved in a less discriminatory way. 

Employers may offer enhanced parental leave as part of their incentive arrangements, to those who perform best. They need to be careful of disability discrimination here, for example if a particular level of sickness absence excludes them from the benefit. Again there’s a good reason for limiting the benefit in this way and so it’s capable of justification. However, it’s best to avoid hard and fast rules regarding the level of absence which excludes entitlement as this could be viewed as disproportionate and the defence could fail on this basis Instead, provide sufficient flexibility in the rules of the scheme to allow disability-related absences to be ignored in appropriate cases. Illnesses occurring during and related to pregnancy should also be ignored in their entirety in order to avoid pregnancy discrimination. 

Action points

If you are considering offering the benefit on a selective basis, you will need to:

• Identify where the risks of discrimination lie. 
• Identify the business reasons for your decision to offer on a selective basis. What are you seeking to achieve? 
• Think about whether your business aims can be achieved by another method which is less discriminatory. If you conclude they can’t, document your reasons. 
• Consider what restrictions are needed on the ability to chop and change between work and leave? How much notice do you need to ensure that appropriate cover arrangements can be put in place?
• Put in place a comprehensive policy. 

This article, written by Tina Wisener, was originally published on Edge online at https://www.i-l-m.com/Insight/Edge/2015/August/Maternity-and-paternity-leave