10 March 2021
A parental leave conundrum
Carey Olsen associate and employment law specialist Lois Madden takes a look at differing approaches to parental leave and the ongoing quest for workplace equality.
Picture the scene. You check your morning emails and notice a valued member of your management team has invited you to a video call, with an ambiguous topic of "catch up". Immediately you feel a minor jolt of panic. You know they recently bought a house with their partner which had "room to grow", and you recall hearing their complaints about being on the "wrong side of 30".
You take a deep breath, remind yourself it will only be temporary, and accept the invite. During the call you smile warmly and offer congratulations. You let the employee know that it won't be a problem, and you've got plenty of time to work out cover. You reassure them that, if they want to take the year, their role will be waiting for them. Before you hang up, you ask Steve to pass your best on to Aimee too.
This is not an alternative universe or a case of gender non-conformist names. If you are an employer in Jersey, Steve, your male employee, could let you know that he intends to take 52 weeks' leave to care for his expected baby, tomorrow morning. In our neighbouring island, with little fanfare last year, Jersey enacted legislation which entitles both parents to 52 weeks of parental leave (6 weeks of which is paid).
This is fairly radical. It goes further than the UK's system of "Shared Parental Leave" (SPL). SPL operates by the mother essentially giving up some of her entitlement to 52 weeks' maternity leave, which can then be used by the father, either at the same time as the mother, or independently. There has been very little uptake of SPL and much analysis as to the reason why. Theories include that the mother acting as "gatekeeper" creates a hurdle, cultural expectations on working fathers are inhibiting requests, and in practical terms families would be less well off (as mothers are more likely to receive enhanced contractual maternity pay not available to fathers). Improvements to the system are under consultation.
So where does this leave Guernsey? If our statutory framework of "family friendly" legislation was assessed against UNICEF standards, we would score '0' and sit bottom of the league table, along with the US. The terms of reference used by UNICEF are how many weeks of paid leave, equivalent to their full normal pay, are available to working parents. In Guernsey, mothers are entitled to 12 weeks of unpaid maternity leave, which is increased to 26 weeks if they meet certain length of service criteria. Their partners are entitled to 2 weeks unpaid paternity leave around the time of the birth. The mother may be able to claim maternity benefits for up to 26 weeks.
These legal minimums do not present the full picture. It is common for larger Guernsey employers to offer enhanced contractual leave and pay. It is in this space that local employers have an opportunity to put into action their commitment to equality. The "motherhood penalty" is an unfortunate reality. The age and stage at which professionals become parents, tends to correlate to the point in their career where they are fighting for the higher rung on the ladder. Until parents are deemed by society, and employers, to share equal responsibility for child rearing, working mothers will continue to be held back. Time spent dedicated to childcare, through both maternity leave and subsequent part time working, may leave women unable to catch up with their male peers. This is a key contributor to the gender pay gap and lack of gender diversity in senior roles.
Gender equality is not simple. Many women will not have children but will experience workplace inequality in a myriad of other ways. Reflecting on your organisation's approach to parental leave (and beyond), simply offers an important opportunity to ensure you are moving in the right direction. Having said that, feel free to decline the invite to Steve's virtual baby shower.
An original version of this article was first published in Business Brief, March 2021.