Law Centre Response to DEL Consultation -
February 2010

About the Law Centre

Law Centre (NI) welcomes the opportunity to comment on this consultation paper.  The Law Centre is a non-governmental legal organisation that aims to advance social welfare rights.  We work to promote social justice and we provide specialist legal services to advice organisations and disadvantaged individuals from our two regional offices.  The Law Centre’s membership comprises approximately 450 organisations across Northern Ireland.

One of the Law Centre’s five areas of law is employment law. We provide advice and representation for employees. The Law Centre employs two specialist Employment Advisers who undertake a range of casework activities. We receive referrals from and provide advice to agencies across the voluntary sector, trade unions, party political constituency offices and other advisers. In addition to providing casework services, we aim to increase understanding of employment rights through training events and publications.

Introduction

The Law Centre is broadly supportive of the proposals outlined in the Additional Paternity Leave and Pay consultation. We believe that the proposals will give parents greater choice in making care arrangements and will ultimately play a positive role in improving gender equality.

In this response we make some general comments about the proposals and then respond to each question where appropriate.

Paid Leave

We are very pleased that the proposed Additional Paternity Leave (APL) and Additional Statutory Paternity Pay (ASPP) will be paid benefits. This is a very positive development. Evidence shows that existing paternity entitlements have a low take-up rate and this is particularly evident where leave is unpaid or at a low level of pay.{footnote}Thompson, Vinter and Young, ‘Dads and their babies: leave arrangements in the first year’ EOC Working Paper Series No.37, 2005{/footnote} Recent research undertaken by YouGov confirms that inflexible and low paid parental leave provisions policies hamper parents’ sharing work and care more equitably. Moreover, research demonstrates that parents have a strong desire to see more equitable, flexible and financially-viable leave arrangements.{footnote}YouGov, Work and Childcare: a study of modern parents’, EHCR, 2009{/footnote} Consequently, the proposal to introduce paid APL and ASPP is extremely welcome.

Beyond Additional Paternity Leave?

Although these proposals are clearly a ‘step in the right direction’, we wonder whether they could be further developed so as to effect even greater positive social change.

Notwithstanding these proposals, the Equality and Human Rights Commission has consistently argued that UK’s parental rights are relatively weak. The Commission calls for strengthening individual rights for fathers rather than simply transferring maternal rights as this policy proposes.{footnote}Equality and Human Rights Commission, ‘Response to BIS Consultation on draft regulations on Additional Paternity Leave and Pay’, November 2009{/footnote} Consequently the Commission calls for a non-transferable allocation of leave for fathers and for incentives to take it such as a ‘use it or lose it’ condition. The Commission points to international examples of good practice such as Norway and Germany. We would support the Commission’s call for progressive policies on this matter.

1. Do you consider the proposed administration of Additional Paternity Leave and Pay strikes the right balance between the need to keep administration simple and the need for certainty of entitlement?

Yes, in general we welcome the proposed policy and its administration. However, as outlined above, we would prefer to see fathers being granted an independent entitlement to take additional leave rather than granting a right that is linked to the mother’s return to work. This would give greater flexibility and would enable both parents to take leave at the same time if necessary. An independent right may improve clarity and certainty of entitlement especially in cases where the mother cannot return to work, perhaps for reasons related to redundancy or poor health.

2. The Government estimates that 4%-8% of eligible fathers will apply for APL&P, what is your assessment of this figure?

We have no comments to make on the Government’s estimated figures. However, we would encourage the Department to actively promote any adoption of ADL to ensure that fathers are made aware of any new rights. If gender equality is to be realised, in part through this new policy, it is essential that ADL uptake becomes mainstream.

3. Do you agree with the proposal to amend the definition of an adopter as described in paragraphs 29-31 of the consultation document?

This proposal aims to introduce a definition of adopter that is consistent with amended adoption law. Unfortunately, this proposal does not apply in Northern Ireland where it remains the case that unmarried couples are unable to jointly adopt a child. We would urge the Department to take this opportunity to work with the Department of Health, Social Services and Public Safety (DHSSPS) in reviewing Northern Ireland adoption law in order to bring it into line with Great Britain. Currently, unmarried couples in Northern Ireland cannot enjoy the same entitlements as their GB counterparts. Not only is this at odds with equality provisions, it is also generally in the best interests of the child for her/him to be adopted into a home where s/he is equally bound to both parents. This is a position outlined by DHSSPS and supported by the British Association for Adoption Fostering.{footnote}DHSSPS Strategy, ‘Adopting the Future’, June 2006{/footnote} We share this view.

4. What are your views on the draft regulations at Annex A?

It is a little unclear in what circumstances a woman is treated as having returned to work. This is important as it is the mother’s return to leave that enables her partner to take APL. For example, will the definition apply to a mother whose Statutory Maternity Leave or Statutory Maternity Pay period has ended but who is taking annual leave or unpaid parental leave? Clarification on this point would be welcome.

We hope that the draft regulations will be issued with accompanying guidance outlining that the proposed rights are equally accessible to qualifying homosexual parents as well as to partners who are not biological parents. We note that the draft regulations are not always in gender neutral language; this should be addressed.

5. How well do you consider the draft regulations support the policy proposal including giving sufficient powers and protections to employers in managing this entitlement and to employees using this entitlement?

The regulations require employees to give six weeks’ notice of any change of plan to take APL.  If an employee submits a notice of a change of plan and the employers cannot accommodate the proposed change, the proposed regulations allow the employers to enforce any previously notified leave period.{footnote}Proposed Regulation 6, pgs 18 - 19{/footnote} While we recognise that advance notice may be desirable from the employer’s perspective, we are conscious that family life can be unpredictable and therefore it may not always be feasible for employees to give six weeks’ notice.  Furthermore, if the mother loses her entitlement to maternity pay, her partner will lose his entitlement to paid APL as his entitlement is linked to hers. Therefore, under the proposed notice period requirements, he may be compelled to take unpaid leave for up to six weeks, which clearly could be of great detriment to the family’s finances. Consequently, we would ask the Department to produce guidance to ensure that flexibility can be applied and that the notice period can be waived in certain circumstances.

We welcome the inclusion of Regulations 29 and 30, which provide that an employee entitled to additional paternity leave is protected against detriment or dismissal attributable to the fact they took sought to take such leave.{footnote}Proposed Regulations 29 – 30, pgs 31 - 32{/footnote}

The EHRC argues that further protection of the right to breastfeed at work is an important corollary of these proposals. Clearer statutory provision to ensure that women are enabled to continue breastfeeding after returning to work while their partner is on additional paternity leave may assist the effectiveness of the proposed policy. The EHCR suggests that maternity provisions could be amended to ensure that a woman’s ‘protected period’ for breastfeeding does not end when she returns to work. We support this view.

Finally, we do not support the provisions to allow businesses to request information that is additional to the self-certification process. We do not see the necessity of allowing employers to make these requests especially given that this would go beyond current requirements for other types of leave such as Flexible Working. As a related issue, we do not support the regulations that allow employees to make checks as to the mother’s entitlement to maternity leave. Employers do not play such a ‘checking’ role in relation to other forms of leave and we do not see the necessity for it here.

How well do you consider the partial impact assessment captures the costs and benefits of this proposal? Please provide additional evidence where possible.

No comment.

Conclusion

As outlined above, we generally support the proposed provisions and look forward to their implementation. The Law Centre would be willing to provide additional commentary on specific issues if necessary.