Alan Delaney of Maclay, Murray & Spens LLP (MMS) writes on recent announcements about parental leave for grandparents.

One of the talking points from the Conservative party conference this week was the surprise announcement that the Government plans to bring forward legislation allowing for grandparents to participate in the current shared parental leave (SPL) regime from 2018 onwards.

Under the existing rules, which took effect from 5 April 2015, eligible parents may now opt to share up to a maximum of 50 out of 52 weeks leave between them (the first two weeks after childbirth are compulsory for the mother to take). The same SPL rules apply to adoptive parents of children placed for adoption.

While the SPL regime offers some additional flexibility to new parents, it has some significant limitations. One is that the system of course requires the mother to return to work early. As such, while it gives leave to fathers/partners with one hand, it takes leave away from mothers with the other hand. Another important limitation is that if there is eligibility for shared parental pay, this is paid at the statutory rate of £139.58 per week (or 90% of average earnings if less). Unless an employer agrees to enhance such a payment, the existing system of SPL is likely to be of interest mainly to families where the mother is the higher earner and wishes to return to work, and of limited use elsewhere. In that respect, it arguably offers little against its stated objective of encouraging fathers to play a greater role in childcare.

The system has also been heavily criticised as being overly complicated for both employers and employees to navigate the various requirements, including detailed requirements as to notices that must be served.

It is with that context in mind the proposed extension of the right to grandparents has to be considered.

Although the Government is yet to consult on the specific changes it has in mind, which is likely to take place early next year, many employers might justifiably be concerned about adding further complexity to a regime that is already difficult to operate and which many are still getting to grips with.

Perhaps the broader question is whether the new right meaningfully adds to the existing system of so-called “family-friendly” rights.

While it is only appropriate that the fantastic work that grandparents do by way of childcare ought to be both recognised and rewarded, it is questionable that extending SPL is the best means by which to do so. Not least since the new right is likely to only operate for many families where both parents/partners return to work shortly after childbirth or adoption. While that may be possible or even necessary for some families, it arguably takes a narrow view of “family-friendly”.

This would particularly be the case if new mothers felt under increased pressure to return to work earlier, alongside fathers/partners, leaving grandparents increasingly obliged to take such leave. In this respect, it may be working grandmothers who feel that it unfairly increases expectations on them, compared to working grandfathers, reinforcing gender inequality.

On the positive side, it should be recognised that some groups, in particular single mothers, have not in practice had the option of SPL open to them, by virtue of having no-one to share their leave with. Insofar as the new rights would give them that possible option, this is to be welcomed.

The reality also is that many grandparents will unfortunately find themselves having to work beyond when they had perhaps hoped to retire. While they can currently make flexible working requests to reduce their hours or work part-time for childcare reasons, the new SPL rights when introduced may offer another option, albeit exercisable in limited circumstances, and only in the first year after birth or adoption.

As the new rights are not due to appear until 2018, it seems likely their introduction may well be subject to how successful or otherwise the SPL regime is deemed to be. This may depend on how many families actually take up the existing rights and whether there is further pressure on the Government to revisit its overall approach to “family-friendly” policies.