The Bar and shared parental leave


by Rachel Crasnow QC

Since Shared Parental Leave (SPL) came into force a year ago on 5 April 2015, I have written, lectured and advised widely about this new legal entitlement. The people I have not engaged with much about SPL are barristers – for the key reason that as self-employed professionals rather than employees, they are excluded from this legal entitlement. 

So why could SPL – this still new means of caring flexibly for a child in its first year of birth or adoption be relevant for barristers with babies? The answer is it would be a huge missed opportunity to ignore it. There was a time when many barristers scorned the idea of maternity leave provisions of any kind at the bar. “You’re self-employed! – you can do what you like! No one can sack you if you get pregnant- you can work when the baby is 2 weeks old if you like – or take 2 years off – it’s totally up to you!” 

This stance ignored the very real fact that barristers were and are side-lined and marginalised when they become pregnant or when they sought to return to work after taking a career break however short. It ignored the economic hardship which followed barristers who had to pay rent throughout their maternity leave to drop out of the profession as they could not afford to rebuild their career whilst also paying childcare and further flat rate rent payments. 

The BSB’s Equality Rules and Bar Council guidance on maternity leave have made a huge difference to barristers’ lives by – at the very least – reducing the financial burden of rent during maternity leave periods. None of this was legally mandated. But it was to everyone’s advantage. Chambers were more likely to retain those skilled women they had invested in for years. The Bar as a whole could avoid becoming an institution where mothers often found it impossible to combine professional and maternity commitments. Individuals could maintain their careers. 

So whilst statutory maternity and paternity provisions apply just to employees – the BSB has long accepted the principle that it needs to support self-employed barristers in taking parental leave and has introduced an E&D Rule requiring chambers offer parental leave periods and rent breaks for those on parental leave (rC110.3.k). 

The reason why it is important for the Bar to consider implementing a form of SPL for the self-employed arises from the actual objectives from this type of leave. 

There are many claims for SPL. Most people would accept that giving fathers a more equal role in caregiving in the early months of their children’s lives sets a pattern for being more involved in childcare. Some say if fathers take parental leave, their families are more likely to stay together and that even if there is a separation, the father is more likely to remain involved with the children. Less controversial than the claim that parental leave leads to children who tend to achieve higher marks at school, be better adjusted and have greater self-confidence, is the view that the mother’s career is less damaged by having children where fathers take parental leave. 

So there are good reasons for fathers at the Bar – even those whose partners do not work themselves – to want to take parental leave for the good of their relationships.  Why should barristers have to comply with the eligibility requirements that employees are placed under in order to benefit from SPL? 

The main reason why sole breadwinners at the Bar would argue they could not take parental leave is that they could not afford to – so why not allow them rent rebates which mirror maternity leave provisions or at least provide a 6 month rent rebate – as long as they agree not to work during that period? 

The BSB could assist with this by introducing an exception to existing provisions which limit parental leave and rent breaks to the “main” carer [1] in circumstances where shared parental leave is taken. It could also endorse a Bar Council guide or produce their own guidance for chambers in relation to calculating leave and rent breaks. 

Existing SPL statutory provisions are incredibly complicated. There is no need for the Bar to echo this. Where a couple in chambers both wanted to take time off during their baby’s first year the total maternity leave on offer could be split between them with a 6 month cap on the father’s leave/rent rebate period. 

The BSB might choose to recommend implementation of a parallel allowance to the parental leave or rent relief currently available to ‘the main’ carer.  For example, taking the BSB minimum standards, rent relief would not exceed 6 months and leave could be up to one year. 

But encouraging fathers to take such leave – whether for 3 weeks or 3 months – by a rent rebate system would make the possibility of parental leave for fathers less wishful thinking and more culturally acceptable. 

Chambers need not fear complex changes to procedures as the BSB and Bar Council would provide detailed guidance to assist chambers in complying with the spirit of the SPL legislation. Importantly recognition would be given to potential abuse of the provision particularly given difficult economic conditions many chambers face. 

SPL has had a low take up over the last year and it may be that male barristers would be slow to embrace SPL as well. But the BSB should be seen to support the concept of shared caring responsibilities, in particular as SPL supports the equality objective around the retention of women barristers and aims overall to enhance the well-being of the family (ref to wellbeing at the bar). 

If Prince William could enthuse about getting his hands dirty when changing a nappy, there is no reason why the even most erudite advocate could not enjoy such responsibilities… 

Rachel Crasnow QC practises in employment law at Cloisters chambers. She is the Chair of the Legislation & Guidance Panel reporting in to the Bar Council’s Equality, Diversity and Social Mobility Committee. 

Bar Council has recently written to the Bar Standards Board requesting that they amend current guidance on parental leave to accommodate Shared Parental Leave.

[1] Parental leave means leave taken by the main carer of a child preceding or following birth or adoption. This could be the mother, father or adoptive parent of either sex (Definition 150, page 274, BSB Handbook)

This blog was first published on Bar Blog.