Shared parental leave and pay: The due date has arrived

In what is probably the most significant change in the law as it applies to family friendly rights since the introduction of statutory maternity leave (SML) and pay (SMP), the new regime of shared parental leave (SPL) and pay (ShPP) came into force with effect from 1 December 2014. The rules and criteria which apply are complex and in this note we provide a broad overview of the changes and consider what they mean for employers.

What has changed?

In relation to all babies whose birth or placement for adoption is due on or after 5 April 2015, eligible parents and adopters will be entitled to share up to 50 weeks (52 for adopters) of SPL and 37 weeks (39 for adopters) of ShPP. SPL can be taken more flexibly than SML, with parents able to take leave in single or discontinuous blocks and consecutively or concurrently with their partners.

Although the regime applies to babies due on or after 5 April 2015, it could have effect for employers from now on because it is conceivable that a baby due on or after 5 April 2015 could arrive early.  It is therefore important that employers are up to date on the new regime not least so they can deal with queries from parents-to-be, which will obviously precede their due dates.  Also, managers should be alive to the fact that employees now have a right not to be detrimentally treated or dismissed by reason of taking or intending to take SPL/ShPP.

What is staying the same?

SPL and ShPP will be supplemental to and not replace existing rights in respect of SML, SMP, adoption and paternity leave.  It is an entirely optional regime that has been introduced to give families more flexibility with their leave and pay arrangements in the first year of their child’s birth or adoption. Although in birth cases it will continue to be compulsory for a mother to take 2 weeks of maternity leave immediately following the birth of her baby.

Who is eligible for shared parental leave?

To be eligible for SPL a parent (either mother or father/first or second adopter) must:

• have been continuously employed by their employer for at least 26 weeks by the 15th week before the expected week of childbirth (EWC) or placement for adoption and still be employed by their employer until the week before SPL is due to start (the continuity of employment test);
• have worked for at least 26 weeks in the 66 weeks ending in the week before the EWC/matching week and have average weekly earnings of not less than £30 per week in 13 of those 66 weeks (the earnings and employment test);
• at the date of birth or placement, have main responsibility for the care of the child (apart from any responsibility of their partner); and
• satisfy the notice and booking requirements for SPL (see below).

For a mother or first adopter to be eligible for SPL, they must:

• be entitled to SML or adoption leave; and
• have curtailed their maternity or adoption leave.

If a mother or first adopter is not eligible for SML or adoption leave but is eligible for SMP/maternity allowance/adoption pay (for example if they are an agency worker), they will be able to provide their partner with an entitlement to SPL if they curtail the relevant pay period.

Who is eligible for shared parental pay?

To be eligible for ShPP, a mother or first adopter must:

• meet the SMP or adoption pay earnings and continuity of employment test;
• have met the evidence and notification requirements for SPL; and
• intend to care for the child during each ShPP week except on the days they are “keeping in touch” by working (they are entitled to do so for up to 20 days), when working for another employer who employed them before the birth, or when receiving statutory sick pay (SSP).

To be eligible for ShPP, a father or second adopter must:

• meet the earnings and employment test;
• have met the evidence and notification criteria for SPL;
• have a partner who is entitled to maternity or adoption pay and who has curtailed that entitlement or is entitled to SPL; and
• intend to care for the child during each ShPP week except on the days they are “keeping in touch” by working (like the mother/first adopter, they are entitled to do so for up to 20 days), when working for another employer who employed them before the birth, or when receiving SSP.

Notification of shared parental leave and booking

Provided a couple meets the eligibility criteria, they can opt-in to the SPL/ShPP regime as long as there is some untaken maternity leave and pay.  To opt-in, each claimant must notify their employer of their entitlement and book the leave and pay they plan to take.

A notice of entitlement must be provided to the employer at least 8 weeks in advance of the leave and pay period and should confirm:

• the total number of weeks of SPL and ShPP they will have after maternity leave has been curtailed;
• the total number of weeks ShPP and a non-binding indication of SPL they propose to take;
• the total number of weeks the other claimant proposes to take;
• the periods, or periods of time when they propose to take ShPP; and
• a declaration of eligibility.

Employers are also entitled to ask an employee for, and be provided with, a copy of the child’s birth or adoption certificate and the details of the other claimant’s employer.  An employer is not responsible for checking the information provided is correct but may choose to speak with the other employer to clarify the SPL/ShPP arrangements.  If an employer is asked to disclose information to another employer, it would be good practice to inform its employee of the request and check that the employee consents to the disclosure, to avoid any potential data protection issues.

An employee can have up to 3 requests for leave considered (within 14 days of a request being made) and each request can be for a single block or numerous discontinuous blocks of leave.  An employer cannot refuse a request for a single block of leave but can refuse, agree or discuss a request for discontinuous blocks or leave.  If such a request is refused, the default position will be that the leave can be taken as a single block.

What are the employee’s rights on return from SPL?

An employee’s right to return following a period of shared parental leave will depend on how much leave they have taken overall:

• if they return to work after a period of SPL which together with any other relevant statutory leave is 26 weeks or less, they will be entitled to return to the same job; and
• if they return to work after a period of SPL which together with any other statutory leave is more than 26 weeks or which was the last in 2 or more consecutive periods of statutory leave (including additional maternity leave, additional adoption leave or parental leave of more than 4 weeks) then they will be entitled to return to the same job or, if that is not reasonably practicable for the employer, to another job which is suitable and appropriate.

Enhancing shared parental pay

Employers who currently pay enhanced maternity pay should consider whether they also wish to enhance shared parental pay, to bring it in line with enhanced maternity pay.  If they do not, they could face discrimination claims legislation although it is unclear at this stage whether such claims would be upheld. It would appear; however, that a decision not to enhance shared parental leave in line with maternity pay would need to be objectively justified based on more than just cost alone.

Warning

This is clearly a complex area of law and employers could face claims if they do not deal with it properly. Employers should therefore put relevant procedures in place before requests from employees for shared parental leave and pay (or information relating to such) start coming in.

This update is for general guidance only. Legal advice should be sought before taking action in relation to specific matters.

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