Until it got wiped out by the Covid19 pandemic, this year was a busy one for #ukemplaw anniversaries. And many of them are (or, at least, were) a cause for celebration: the Equal Pay Act 1970 is 50 years old this year, and the Equality Act 2010 is ten years old. Light those candles on your cake. But please do comply with social distancing rules.

However, there was another anniversary this year that is less a cause for joyous celebration, than a timely opportunity for reflection on whether we are on the right path. For 5 April 2020 was the fifth anniversary of the coming into force of the right to Shared Parental Leave, created by the Conservative and Liberal Democrat Coalition Government under Part 7 of their Children and Families Act 2014.

Since 5 April 2015, while new mothers are still legally required to take the first two weeks of maternity leave, they can then cut their maternity leave short, exchange if for Shared Parental Leave, and then share up to 50 weeks of that leave (up to 37 weeks of it paid) with the father or other parent. Well done, Jo Swinson.

At the time, the TUC and others warned that many new parents would not even qualify for the new right, leaving many new fathers with no statutory right to time off work in the year following the birth of their child, other than two weeks of paternity leave. And employers fretted about the sheer complexity of the new Regulations.

Sadly, those warnings and concerns have proven to be well-founded. As the journalist Alexandra Topping noted recently in the Guardian:

“Only around three in seven families are eligible (agency workers and those on zero hours contracts are excluded), and of those only about 1% have shared any leave at all. By any reckoning it is, according to Adrienne Burgess of the Fatherhood Institute, ‘an inequitable and failed policy’.”

In fact, robust data on take-up of Shared Parental Leave is pretty much non-existent, with the TUC basing its “just over 1%” figure, regularly cited by journalists, on an estimate published in early 2019 by the University of Birmingham, which in turn seems to have lifted it from a 2018 guesstimate by an employment law firm seeking to drum up business.

One key problem is that no one knows exactly how many new fathers are eligible for Shared Parental Leave. But we do know the number is most likely in excess of 250,000 (there were 660,000 births in 2018, and in 2013 the Coalition Government suggested there would be some 285,000 eligible fathers each year).

And we know, from various Freedom of Information requests to HMRC, that only 8,500 fathers received shared parental pay in 2018/19. So, five years after implementation, few believe that take-up of Shared Parental Leave has reached much beyond the lower end of the Coalition Government’s somewhat gloomy 2013 prediction of 2-8% of eligible fathers (or about 1-4% of all new fathers).

That is simply not good enough, if the aim is to tackle the widespread pregnancy and maternity discrimination in our workplaces, and the Gender Pay Gap, by enabling a societal shift towards more equal parenting. And five years is long enough to tell us that we cannot expect much more from Shared Parental Leave. As Alexandra Topping concludes:

“We have to overhaul parenting policy and parenting culture in this country, and we have to start now.”

The good news is that five years’ experience of Shared Parental Leave confirms the lessons we could and should have learnt from the impact of parental leave policies in other countries. In short, the most successful approaches in other countries – such as those in Sweden, Norway and Iceland – are based on individual, non-transferable rights for both the mother and the father, and on all leave being moderately well paid.

Which does not mean mothers and fathers have to have identical rights to leave in the first year of their child’s life: fathers do not play an equal part in the biological and physical endeavours of pregnancy, childbirth and breastfeeding. But we do need to greatly enhance new fathers’ right to paid parental leave, while protecting mothers’ existing rights to paid leave in late pregnancy and to recover from the often considerable physical and/or mental impact of pregnancy and childbirth.

In recent years, a (very) small number of employers such as the drinks conglomerate Diageo, the insurance provider Aviva, and the finance company Investec have justly garnered approving press coverage for introducing contractual rights to six months of parental leave, on full pay, for both new mothers and fathers. But their experience tends to confirm that such equal entitlements to well paid leave do not, by themselves, lead magically to equal parenting: at Aviva, mothers still take an average of 311 days of parental leave, while fathers take an average of only 158 days (i.e. not even their full contractual entitlement to six months’ leave on full pay).

In any case, while such supposedly equitable schemes might work well for large and highly profitable companies, it is simply fanciful to think that any government would move from our existing system of grossly underpaid maternity, paternity and shared parental leave to one that includes six months of statutory parental leave on full pay for each parent. The role of the statutory system will always be to provide a minimum level of provision that meets the basic needs of pregnant women and new parents. And, in the first year, women have greater needs than men. Really, it’s true. I’ve had two kids. So I know.

This is partly why the fab feminists at Maternity Action have proposed a simple, 6+6+6 model of statutory leave, to replace the chronically failing Shared Parental Leave: six months of maternity leave reserved for the mother, and six months of non-transferable (‘use it or lose it’) parental leave for each parent. This parental leave could be taken together or separately, giving a combined maximum of up to 18 months, if all leave is taken consecutively. Plus, as now, all new fathers (and adoptive co-parents) would get two weeks of paternity leave, available to be taken at or near the time of birth.

At least as important as fathers’ statutory entitlement to parental leave, however, is the rate at which it is paid. The currently, ludicrously-low rate of statutory maternity, paternity and shared parental pay – £151.20 per week – equates to just 49% of the national minimum wage (for someone aged 25 or over, working a 35-hour week), and to only 40% of the Living Wage Foundation’s living wage (outside London), which is independently-calculated as the minimum that people need to get by. Maternity Action suggest that, at the very least, this standard rate should be doubled, to £300 per week. And, in the longer run, it surely needs to go higher still.

Finally, as the experience of Aviva demonstrates, as much as we need to ditch Shared Parental Leave and replace it with a simpler, more equitable statutory system based on individual, non-transferable rights to leave and pay, such reform will fail to deliver equal parenting unless it is accompanied by robust action to increase the supply of good quality, affordable childcare, a shift to a ‘flexible by default’ approach to job design and recruitment, and a major effort by political and business leaders to drive a change in parenting culture.

How about we make sure that, five, ten or 50 years from now, we do have something to celebrate when talking about equal parenting? Once the Covid19 pandemic and lockdown is over, let’s not go back to the bad old normal.