Discover Germany | Issue 21 | December 2014

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Discover Germany | Business | Solicitor Column


If your family is expecting a new arrival after 5 April 2015, lucky mum might be in line for somebody else to arrive on her baby boy’s or girl’s nappy tails: dad. I am pretty sure that the last thing my wife would have wanted at that stage on top of everything else would have been to have me in her way constantly but apparently life is all different now for the modern family. At least the government appears to think so and has therefore given us (or perhaps rather: you) a new scheme which makes working parents eligible to take shared parental leave during the first year following the birth of their child, courtesy of the Children and Families Act 2014 and the Shared Parental Leave Regulations 2014. The legislation is designed to give more flexibility to qualifying parents, allowing them to take parental leave alternately or at the same time. The measure is intended to benefit not only parents but interestingly also employers because the measures are anticipated to reduce staff turnover. The basic idea is that sharing parental leave more equally will make it easier for women to balance child care with a dynamic career and help fathers to spend more time with their new-born child. However, the experience to date is not encouraging if the system of additional paternity leave currently in place is anything to go by: less than 1% of fathers took advantage of the scheme in 2011/12, which falls some way short of making it a resounding success. But this, too, will apparently now be all different because the new system is designed to be more flexible. So here is an outline of the new rules: - Parents will not be obliged to take shared parental leave. Maternity leave and statutory maternity pay are not changing.

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Women who give birth will still be able to take up to 52 weeks’ maternity leave (of which 39 weeks will be paid leave under the statutory scheme). Statutory maternity pay is paid at 90% of average earnings for the first six weeks of leave and thereafter at a statutory flat rate for the remaining 33 weeks. - Fathers will still be entitled to two weeks' paternity leave straight after a child's birth but the new shared parental leave replaces the additional statutory paternity leave regime which is currently in place. - Mothers must take the first two weeks off work after giving birth, but they will now be able to change from maternity leave to shared parental leave by ending their maternity leave early and returning to work at any point after the first two weeks, thereby transferring or allowing their partner to share the remaining 50 weeks of leave and 37 weeks of pay. Any untaken maternity leave and/or pay potentially becomes available to take as shared parental leave and/or pay. - The new scheme does not provide that the first six weeks of shared parental leave have to be paid at 90% of salary as it is the case for statutory maternity pay. - The intention to take shared parental leave must be notified to the employer at least 8 weeks in advance. An employer cannot refuse a request for a continuous period of shared parental leave and up to three separate periods of non-continuous leave can be agreed, thus enabling parents to mix and match periods of work and leave. - Parents have the right to return to the same position as the one held prior to their leave, provided total leave does not amount to more than 26 weeks. If it does amount to more, they have the right to return to a similar position.

The reform brings the English parental leave system more in line with that of countries such as Germany, whose system grants both parents the same entitlement to a period of leave and allows it be taken by one or both parents. However it does not go quite as far as the rules in some Scandinavian countries with their so-called ”daddy quota” where part of the parental leave period is exclusively reserved for fathers. Let’s see whether generation Y is ready for a shift in culture. In any event, good luck, mum.

Gregor Kleinknecht LLM MCIArb is a German Rechtsanwalt and English solicitor, and a partner at Hunters Solicitors, a leading law firm in Lincoln’s Inn. Hunters Solicitors, 9 New Square, Lincoln’s Inn, London WC2A 3QN, E-mail: