Questioning equality over parental leave

The recent Court of Appeal ruling on Shared Parental Pay throws up some interesting issues around equality and parental leave.



Are men and women entirely equal when it comes to parental leave? The recent Court of Appeal ruling that it is not discriminatory to enhance maternity leave while not enhancing Shared Parental Leave throws up some interesting questions. The Court ruled that the two forms of leave are not equivalent since maternity leave is in large part about the recovery of the mother from childbirth and issues such as breastfeeding. Shared Parental Leave is more to do with looking after the baby. Shared Parental Leave can be taken by both men and women. The Court said it would be discriminatory if men and women taking SPL were paid differently, ie if Shared Parental Pay [SPP] was enhanced for women, but not for men. However, comparing enhanced maternity pay and SPP was not comparing the same things.

There was also a ruling in the US last week concerning the bank JP Morgan. It revolved around a case where a dad asked to take 14 weeks of “primary caregiver” leave after his son was born. JP Morgan told him that fathers were only eligible for two weeks of paid parental leave unless they could show that their spouses or partners were incapacitated or had returned to work. He did not qualify for the leave as his wife had no medical limitations that stopped her from caring for their son. JP Morgan has since ‘clarified’ its policy, meaning both men and women can qualify for the leave.

I’m all for parents having the choice over their parental leave and who should be the primary carer and I absolutely support encouraging shared parental leave and greater standalone leave for dads – where possible through enhancing pay. I do, however, also understand the Court of Appeal ruling.

The time off that mums have to recover from pregnancy and childbirth and to encourage breastfeeding needs to be protected. Men and women are not the same when it comes to having kids. The impact of carrying a child and having it is huge, both physically and mentally. A caesarean, which I have had, can take weeks to recover from. It is major surgery. There are all sorts of other complications that can occur. With my first daughter, I was told if I had not got to the hospital when I did my daughter would not have survived and had I got there 20 minutes later, I would not have survived.

Following the caesarean, I developed an infection which completely knocked me out. I then had an allergic reaction to the antibiotics. As the main earner, I took around five months’ maternity leave because the paid element of SMP is very low and no-one seems to have made a fuss about that until men started complaining about it. Then there are the gory details that no-one tells you about. Just going to the toilet after the birth, especially if you have had stitches, is not fun. I could barely walk for a while after the caesarean. My partner was in shock, but otherwise okay. Don’t tell me the two experiences are equivalent.

Then, of course, there is post natal depression/post partum psychosis. The latter is rare, but there has been quite a bit around recently about PND and men. I’m not saying that men cannot feel down after the birth. Having children is a huge transformation and, of course, any big change can leave people depressed and anxious. Perhaps that contributes also to PND in women as do the isolation and responsibility that often comes with being the sole ‘primary’ caregiver stuck at home doing maternity leave. But they are unlikely to be the only factors. Giving them the same name may suggest they are equivalent.

Nevertheless, I do believe that it is in women’s interests if dads take more leave as it sets the pattern for later in life in terms of sharing care. Moreover, most dads I have spoken to who have taken shared parental leave have taken the latter part of the year off precisely because women are still recovering and sometimes breastfeeding.

But it is a concern that women might feel forced back to work early if legislation that protects their right to time off after the baby is born is chipped away and that a judgment of discrimination could lead to employers opting to stop enhancing maternity pay rather than to enhance shared parental leave. We are not living in normal times and things don’t always progress. There was talk in Conservative circles not so long ago about abolishing maternity leave [Steve Hilton, David Cameron’s adviser is said to have proposed it]. In the past UKIP under Nigel Farage is reported to have called for the abolition of statutory maternity pay. The Brexit Party’s position is unclear because it seems to be trying to get away with having no publicly stated policies.

There is definitely a debate to be had about how much time women need to recover etc from childbirth and whether 12 months is in women’s best interests – bearing in mind that most women don’t take 12 months off because the pay is so low – because it can be harder to go back to work the more time you take off. Would it not be better to reduce the amount of leave and increase the statutory pay for parental leave across the board? That would be more equal all round as it would mean parents were not forced back to work early due purely to financial reasons.

All legislation, all policies, all ideas are open to unintended consequences. This week I got a press release about period discrimination. I am all in favour of basic things like sanitary bins at work – not having them just suggests that the workplace has not actually acknowledged that women are in it – but is there a danger that making a big thing about periods being used against women? In addition, the press release talked of a survey of 2,000 ‘menstruators’ because, in the interests of equality, apparently women don’t exist any more and are to be reduced to certain biological processes. It should perhaps be noted that the same does not happen with men – I have yet to read a press release about 2,000 ejaculators…

All of this stuff provides a lot of food for thought, but I think it is right that we proceed on these issues with caution, aware of all the potential pitfalls. Women have been here before. Equality is a complicated thing and it pays to question everything.

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