NHS urged to enable junior doctors to access shared parental leave

This article was taken from: https://www.theguardian.com/society/2018/dec/25/nhs-urged-to-enable-junior-doctors-to-access-shared-parental-leave

By Alexandra Topping at The Guardian news

Regular rotations between hospital trusts render them ineligible, even if they have worked for NHS for years

Junior doctors are being denied access to shared parental leave, leaving the NHS open to accusations of gender discrimination, according to medical professionals and lawyers.

Junior doctors have told the Guardian that because of regular rotations between hospital trusts they are being told by HR departments that they do not qualify for shared parental leave, even if they have worked for the NHS for several years.

Female junior doctors on training rotation are also often ineligible for shared parental leave, but can qualify for maternity leave under longstanding guidance that takes into account “continuous service with one or more NHS employers”, rather than one single employer.

Junior doctors say this pushes women to take maternity leave rather than shared parental leave and may have a detrimental impact on female doctors’ career progression and pay, while men are denied the opportunity to take time off to care for their babies.

The law states that to be eligible for shared parental leave you must have been in continuous employment with your employer for 26 weeks, 15 weeks before your baby’s due date. But because junior doctors sign a new contract with a different trust approximately every year, only a very small number would be eligible and most only for the first few months of the child’s life – when most fathers opt to take shared parental leave later in their child’s first year. Gay parents are also likely to be affected.

Several junior doctors, who can be in training for as long as a decade, described receiving contradictory and confused advice from HR departments, unclear on the rules and employee rights.

Mike Spencer Chapman, a 35-year-old in his third year of a five-year registrar haematology training programme, was initially told he could take shared parental leave, but two weeks before it was due to start was told this had been a mistake.

“It threw us into a total panic, we had no other childcare arrangements, my wife’s SPL [statutory parental leave] was about to finish – it was very shocking and distressing,” he said. He escalated a complaint to the top of HR and was eventually granted a “variation order”.

“It worked out for me in the end, but this is a huge injustice. It’s not like junior doctors are quitting jobs and starting a new one – we are training and that should be treated as one period.”

When Spencer Chapman highlighted the situation on a junior doctors’ forum, it garnered 125 comments in less than 24 hours, with several doctors getting in touch to complain they had been treated similarly.

The British Medical Association (BMA), the doctors’ union, said it was actively working on the issue, adding that the “outrageous” policy was a contributor to the NHS gender pay gap, which NHS Digital puts at 14%.

“We know that women taking time out to have a child has long-term consequences for their pay and career progression,” said Dr Jeeves Wijesuriya, the BMA junior doctors’ committee chair. “For couples who are doctors, widening access to leave for fathers increases parents’ options but such barriers mean that it is much easier for women doctors to take maternity leave,” he said. “Clearly exceptions should be put in place so that doctors working on rotations are able to take shared paternity leave.”

Ben Carter-Ives and his wife Rosie, both paediatric trainees, wanted to share SPL after the birth of their daughter, but were told they did not qualify. “If my wife takes the maternity leave, that puts her back in her career but there is no other choice,” he said. “It’s detrimental to her career, it fuels the gender pay gap – but I was also looking forward to having five months to look after my daughter and it feels like I’ve been cheated out of that.”

“It’s utterly infuriating, it’s an awful way for it to be set up but there’s no one person to blame. It’s a rigged system.”

Some junior doctors are employed under a lead employer arrangement, one long-term contract for the duration of their training and would qualify for SPL. Others have been given granted SPL despite being, on paper, ineligible.

The system is a mess, said Leighton Walker – a junior doctor specialising in obstetrics and gynaecology. He was originally told he qualified and his wife, a barrister, arranged to go back to work after six months. Weeks before Walker’s SPL was due to start he was told he was ineligible, and only when he escalated a complaint on the grounds that his wife would suffer reputational damage did the trust agree to the original deal.

“It seems few people know what the actual rules are,” he said. “I’m not a legal expert but I would think the NHS is leaving themselves vulnerable to legal challenge under gender discrimination in the way that maternity leave depends on at least 12 months’ service in the NHS, whereas SPL depends on 12 months’ service in the hospital.”

James Watkins, an employment lawyer with Slater and Gordon, said current policy could be risky for the NHS. “There is the potential that the NHS could be exposed to allegations of indirect discrimination,” he said. “It should be the case that the rules on SPL should be used in positive way, and not to disadvantage people – that is the whole intention after all and if that’s not the case then something is going wrong.”

Michael Newman, an employment lawyer at Leigh Day, said several cases around shared parental leave were currently in the courts, with more likely to follow. Estimates suggest the take-up of shared parental leave across all employees eligible to take it is as low as 2%. “The take-up of shared parental leave is already so low, so when men run into these hurdles it just puts them off taking it – which is entirely against the aims of the policy,” said Newman.

NHS Employers, which negotiates contracts with healthcare staff on behalf of the government, said it was “aware that the position of some doctors in training, who are not employed by a lead employer” did not always meet the requirements.

A spokesman said: “As part of the NHS staff council pay, terms and conditions deal we have a commitment to look at enhancing shared parental leave for all NHS staff. We will be working with the BMA to review how we support all doctors in training to be able to access shared parental leave.”