IM in the Know: Shared Parental Leave

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1. Background

1.1 – As of April 2015, new parents and adopters have had an opportunity to share up to 52 weeks’ leave between them, in a way which best suits their families, via a right called shared parental leave (“ShPL”).

1.2 – Eligible parents are able to take time off together to care for their child, transfer leave to their partner, and return to work in between leave periods during the child’s first year. The scheme potentially offers parents a huge amount of flexibility, but to achieve this, the rules are highly complex and create an added layer of bureaucracy and uncertainty for employers.

2. Who does it apply to?

2.1 – Shared parental leave (“ShPL”) is available to parents whose babies were due on or after 5 April 2015 (even if they are born earlier than that).

2.2 – It also available to parents who adopted on or after 5 April 2015.

3. Do parents have to take shared parental leave?

3.1 – No. ShPL is entirely optional. Parents who do not wish to take ShPL can still benefit from existing rights.

3.2 – Employees can, but do not have to make a decision about whether they wish to take ShPL before their baby is born, or their adoption takes effect. The default position will be that employees will take up to 52 weeks of maternity leave (or adoption leave) but can reduce this and opt into ShPL if they wish to.

4. Who is eligible to take shared parental leave?

4.1 – Only employees are eligible for ShPL. It is not available to agency workers, self-employed persons or parents who do not work. However any earnings received may enable their co-parent who is an employee to take the leave.

4.1.1 – Birth: The child’s mother or father.

4.1.2 – Adoption: Someone with whom a child is, or is expected to be placed for adoption.

4.2 – Only one person can share parental the leave with the mother or primary adopter. It is only available to the child’s father, or to the mother’s husband or civil partner, or partner living in an enduring family relationship, which means they live together. It is not available to relatives such as parents, siblings and other wider family members.

4.3 – Additional requirements

4.3.1 – To qualify for ShPL, your employee must also satisfy the ‘continuity of employment test’ which means that they have to be continually employed, for at least 26 weeks ending with the 15th week before the week in which the baby is due and must remain continually employed up to the date on which he/she takes ShPL.

4.3.2 – Both parents must be “economically active”. Where one parent is an employee and wishes to take ShPL, their partner must have worked in an employed or self-employed capacity in at least 26 of the 66 weeks immediately before the expected week of childbirth (or notified of a match if adopting), earning at least £30 per week based on any 13 of those weeks. This is the same as the test for economic activity for maternity allowance.

5. Who is entitled to shared paternity pay (“ShPP”)?

5.1 – Not all employees who qualify for ShPL will be entitled to receive ShPP. To qualify, your employee must satisfy the ‘normal weekly earnings’ test (which is the same test as applies to eligibility for statutory maternity, adoption and paternity pay).

5.1.1 – ShPP of up to 37 weeks’ pay is available to those who qualify. Any payment received in respect of maternity or adoption pay is deducted from the entitlement.

5.1.2 – ShPP is paid at a flat rate, set by the Government each year. It is currently paid at the rate of £139.58 a week or 90% of the employee’s average weekly earnings, whichever is the lower.

5.2 – Both parents must be eligible to receive ShPP if they wish to share it.

5.3 – Women who elect to start ShPL before the end of the first six weeks they are in receipt of statutory maternity pay, will be paid at the flat rate and will therefore lose out financially. It is therefore difficult to envisage many new mothers electing to start ShPL earlier than 6 weeks after statutory maternity pay has commenced.

6. How much shared parental leave is available?

6.1 – The scheme makes up to 50 weeks of ShPL and 37 weeks of Shared Parental Pay available for eligible parents to take or share. It must be taken within the first year of the child’s life or adoption. The amount of ShPL is whatever remains of the 52 weeks entitlement after the parent returns to work or from the date she intends to curtail her leave. For example, if the employee has taken 10 weeks maternity leave, 42 weeks will be available as ShPL.

6.2 – New mothers are required to take 2 weeks compulsory maternity leave (increasing to 4 weeks if they work in a factory). They cannot “opt out” of these minimum requirements and a new mother cannot switch to ShPL until after her period of compulsory maternity leave ends. Similarly, an employee taking adoption leave is required to take 2 weeks compulsory adoption leave.

7. What steps do employees wishing to take ShPL have to give to their employer?

7.1 – Eligible parents have to determine whether they are eligible and “opt in” to ShPL. The mother, or primary adopter can do this in one of two ways:

7.1.1 – By returning to work before the end of their statutory maternity, or adoption leave; or

7.1.2 – By curtailing their maternity or adoption leave or pay. If this option is chosen, the parent must give notice to their employer that they intend to end their leave at a future date. The mother chooses the date she will end her maternity leave and specifies this in the notice.

8. Can an employee change their mind once they opted in to ShPL?

Yes, but only in limited circumstances and only if the mother has not returned to work. These include, where the mother issued the Curtailment Notice before her child was born, or where her co-parent has died, or she discovers that she is no longer entitled to ShPL.

9. How can an employee book leave?

9.1 – At least 8 weeks before the date the parent wishes to take ShPL, he/she must provide their employers with a Period of Leave or Booking Notice which sets out the ShPL dates they wish to take. The Notice must also set out the dates on which the notifying parent intends to claim ShPP.

9.2 – Parents can choose when to start ShPL and are free to decide (subject to the rules on discontinuous leave) precisely how they wish to share the leave. They have the option of taking it concurrently, consecutively or with gaps between leave periods.

9.3 – A Period of Leave Notice can set out more than one period of leave but parents are only allowed to serve 3 Period of Leave Notices to book or vary a previously agreed pattern of leave unless their employers agree to accept more. This means that employees must carefully consider the arrangement they need if they are to avoid wasting a notice.

9.4 – Notices which are withdrawn, or are varied because the child is born earlier or later than expected, do not count towards one of the 3 Period of Leave Notices.

10. Can parents change their minds about the dates they wish to take?

10.1 – Yes. Parents can vary the notice and apply to change the dates of their ShPL but have to give their employers 8 weeks’ notice. This will also count as one of the 3 Period of Leave Notices.

10.2 – Notices which are withdrawn, or are varied because the child is born earlier or later than expected, do not count towards one of the 3 Period of Leave Notices.

11. Does an employer have to agree to the leave periods requested?

11.1 – This depends upon whether the employee has asked to take one period of continuous leave or discontinuous leave in a single notice.

11.1.1 – Continuous leave: Employees are entitled to take one period of continuous leave on the dates sought (provided they have issued the appropriate notices/declarations).

11.1.2 – Discontinuous leave: Parents are entitled to use one notice to request ShPL in split, shorter periods of at least a week, with periods of work in between (for example, 2 weeks in June, 3 weeks in September etc). However, if their employer cannot agree to the request straight away, it has two weeks to discuss the arrangement with the employee to try and reach agreement. It can propose alternative dates, or refuse the request without giving alternative dates.

11.1.3 – If no agreement is reached within that period, the employee is entitled (but is not obliged) to take the full amount of ShPL requested in one continuous block, starting on the start date given in the notice. In the example given above, this would amount to five weeks leave.

11.1.4 – However an employee will still be able to take leave in up to three discontinuous blocks, even if their employer is not in agreement, simply by serving separate notices in respect of each discrete block of leave, provided they have not already used up all of their 3 Periods of Leave Notices.

12. Does the business have to explain why it has refused an application for discontinuous leave?

12.1 – No. The Regulations do not say what reasons an employer can rely on to refuse a request to take discontinuous leave. There is no requirement to consider the requests in a ‘reasonable’ manner.

12.2 – The way in which requests for discontinuous leave are handled could however potentially lead to breach of trust and confidence claims or formal grievances. Employers must ensure that they treat applications made by men and women in the same way to avoid discrimination claims.

12.3 – Although the business does not have to explain the reasons for declining an application, it is sensible to do so. We recommend that the response should refer to the business context and explain why it is not practicable to grant the dates or periods requested.

13. What contractual terms and conditions apply during ShPL?

13.1 – As is currently the case during a period of statutory maternity, paternity or adoption leave, during a period of ShPL an employee is:

13.1.1 – Entitled to the benefit of their terms and conditions of employment as if they had not been absent (apart from those relating to wages or salary);

13.1.2 – Bound by any obligations (express and implied) arising under their terms and conditions, except for those that are inconsistent with their right to be absent from work;

13.1.3 – Employees have the right to return to the same job if they are absent for up to 26 weeks in total (including periods of maternity, paternity and adoptive leave attached to ShPL); and

13.1.4 – Employees who are absent for more than 26 weeks in total have the right to return to the same job unless it is not reasonably practical, in which case they have the right to be offered a suitable alternative job on no less favourable terms.

14. Are employees on SPL entitled to Keeping in Touch (“KIT”) days?

Each parent has 20 ‘work during ShPL’ days (which are equivalent to KIT days during maternity leave) available during ShPL.

15. Do employers who provide enhanced maternity pay have to offer this to those taking shared parental leave?

15.1 – The Government has indicated that businesses do not have to enhance ShPP even if they enhance maternity pay.

15.2 – ShPL is available to both sexes and it might therefore be difficult for men to bring successful discrimination claims for the disparity in treatment if an organisation choses to only enhance Maternity Pay. That said, this is an area of uncertainty and there is already case law which suggests that men may have grounds to bring a claim for discrimination if they do not take SHPL because they cannot afford to do so.

15.3 – In one recent case, Shuter v Ford Motor Company Ltd, the Employment Tribunal found that Ford was able to justify its generous maternity pay scheme whilst only offering statutory paternity pay. The Tribunal accepted that Ford’s policies were part of a long-term plan to recruit and retain more women who are under-represented in its workforce. Whilst helpful, this needs to be looked at on its own facts and not all businesses will be able to argue the same aim of needing to retain more women by an enhanced maternity scheme and so justifying a more basic ShPL scheme.

16. Is there any help available to understand this?

16.1 – The rules are a good example of how a simple and laudable concept (sharing the responsibility for child-rearing) can become fiendishly complex when put into practice.

16.2 – The Government has published guidance on ShPL and ACAS has also produced a guide which businesses may find useful. However, due to the complexities of the rules and the interaction with your own policies, specific legal advice is likely to be necessary to ensure your policies are compliant and you avoid discrimination claims arising from a misapplication of the new rules.

16.3 – We have experience of advising clients on this issue so please contact us for further advice. If you do not have a shared parental leave policy, we can assist with this too whether under our IMhrplus service or separately.

For information on any of the above or our IMhrplus service, please contact:

Jenny Arrowsmith

Associate Solicitor
For and on behalf of Irwin Mitchell LLP
Wellington Place, Leeds, LS1 4BZ

DDI: 0113 218 6446
Mobile: 07718 668646

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