Law: Daddy's home - but he's not going to get paid

New legislation will guarantee a father's right to spend time with his children. However it'll be no picnic, writes Valmai Adams

New proposals for an increase in the amount of parental leave will prove to be a mixed blessing for working fathers. The EC's Parental Leave Directive being introduced into the UK through the Employment Relations Act gives them a legal right to take time off to spend with their children. On top of this the working father will also have the right to take time off for what are termed "family emergencies".

However, if Bill or Phil assume that they will now be able to take the day off at their employer's expense to wheel their children round the golf course then they will have to think again. First of all, parental leave is unpaid and must be to care for the child. Secondly in the consultation document issued by the Government earlier this month the proposals include a number of rules that will balance the needs of busineses, particularly small businesses, with the stated intention of making it easier for parents to balance work and family responsibilities.

For a start, the right to parental leave only applies to a child born after 15 December 1999 [the date that the Directive must be implemented into UK law] and, except in the case of adoption, only continues up until the child's fifth birthday. The amount of parental leave must be 13 weeks for each of the employee's children born after that date, but for part- timers the leave is proportionate to the time worked. Also Bill or Phil cannot change employers and then expect to have a further 13 weeks parental leave with the new employer.

Under the proposed model scheme applicable if the employer has not agreed a more beneficial scheme [with trade unions or its workforce], not only will Bill or Phil have to take leave in blocks of at least one week, which can be limited to four weeks in any year, but a minimum of four weeks notice must be given for leave of two weeks or less. With longer leave then double the notice has to be given, for example, for four weeks leave, eight weeks notice is required (so much for a sunny day on the golf course!).

An employer can postpone parental leave if it causes difficulties to the business. However, leave can only be postponed for up to six months and if the employer is not able to allow the employee the full rights before the child's fifth birthday then the parent still retains the rights to it. Employees will have a right to complain to an Employment Tribunal if an employer fails to comply with his obligations, for example, if our employer cannot give any good business reason for refusing parental leave when it is requested.

Fathers like Bill and Phil will have the right to take time off when their children are born and there are special provisions in the Government's proposals for fathers who want their parental leave straight after a baby is born when they may not be able to give notice of the exact date on which parental leave should start.

With three months notice the date of such paternity leave cannot be postponed by the employer regardless of business problems.

However, under the separate rules relating to family emergencies which allows employees a reasonable amount of time off, also unpaid, during working hours to look after "dependants" then Bill and Phil will be entitled to time off for the birth of a child to look after their wife and because of any unexpected disruption to child care arrangements.

Steven Byers on Radio 4's Today Programme on 4 August 1999, accepted there may be difficulties in defining what is an "emergency" using as an example a call from school reporting a child's accident. Issues will also arise as to whether Bill or Phil can claim they are entitled to dependant's leave to look after their existing children when another child is born, although it is not "unexpected" unless the baby is born prematurely. An employer could argue that if Bill and Phil had not given three months notice, they shouldn't be entitled to paternity leave.

Most organisations already allow fathers days off for the birth of a child and in many cases this is paid leave. In a survey that Nabarro Nathanson conducted with the Industrial Society, none of the companies questioned the merit of the parental leave proposals but displayed concern over the details, many stressing the importance of keeping the leave unpaid and minimising the bureaucracy involved in administering the measures.

Unfortunately, the Government's proposals, while well intentioned, are likely to increase the red tape and although they have indicated there is no need to keep records, there will be a problem in whether Bill and Phil have used their full parental leave entitlement, particularly if they change employers (or wives) on a regular basis.

Valmai Adams heads the Nabarro Nathanson's Employment Group in London