Ahead of the planned deliberations by the States for the proposed maternity legislation next week, an amendment has been submitted to effectively introduce the concept of shared parental leave to Guernsey. The mechanics of how such a system would need to be worked out, but under the proposed amendment partners would be able to share the entitlement to either maternity or adoption leave (but excluding the 2 week period of compulsory maternity leave) as well as the 10 'Keeping in Touch' days. Although the amendment makes no mention of the fact, it is likely that if introduced employees would also require a minimum period of employment before becoming eligible.
At this stage it is not clear whether or not this amendment will have the necessary support to become law. However, if it were be approved alongside the rest of the package of measures to introduce new maternity laws to Guernsey, it would represent nothing short of quantum leap forward for Guernsey in terms of family friendly rights. By way of comparison, mothers in the UK have had the right to take maternity leave since 1975, yet it is only since April this year, a full 40 years later, that partners have had the right to share that leave. Whilst such a radical step is creating headlines today, in practice the likelihood is that the take up of such a right would be relatively low. Whilst no detailed research exists of what interest partners would have in exercising the right in Guernsey, analysis carried out by the UK Government in 2013 suggested that the expected take up of the new right would only be between 2% and 6% of eligible employees. On the basis that the right in Guernsey would also be unpaid and given the numbers of births each year, the likelihood is that we may only be talking about single figures exercising the right each year, therefore for the vast majority of small businesses, the likelihood is that this amendment will not impact on them in any way.
What this change will involve, without question, is the wholesale rewriting of almost every maternity policy on the island. Those employers who already offer enhanced maternity leave and pay for new mothers, will need to consider, for example, how they are going to deal with these new rights and specifically the question of whether partners will be eligible to receive enhanced pay and leave rights, if they elect to take the leave. Given that this group will be overwhelmingly men, there is a clear risk that an employer who decides to pay women during maternity leave but not men who exercise their right to share maternity leave could face an allegation of sex discrimination. Interestingly, the same risk exists in the UK, yet there is no settled position there, with many employers holding off paying enhancing maternity pay to partners, until there is a definitive answer from the Tribunals.
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