The Shared Parental Leave Regulations came into force on the 1 December 2014. While they only apply where a baby is due to be born on or after 5th April 2015, or for children who are placed for adoption on or after that date, employers should be prepared to start receiving notices of eligibility and the intention to take shared parental leave from qualifying employees from January 2015.
The Regulations are designed to give eligible mothers, fathers, partners and adopters more flexibility in how to share the care of their child in the first year following birth or adoption. Employed mothers will continue to be entitled to 52 weeks of maternity leave and 39 weeks of statutory maternity pay or maternity allowance. However, if they choose to do so, an eligible mother can end her maternity leave early and opt for shared parental leave, instead of maternity leave, with her partner or the child’s father. Adopters will have the same rights as other parents to shared parental leave and pay.
To qualify, the mother or adopter must be entitled to, and have given notice to curtail their, maternity or adoption entitlements and must share the main responsibility for caring for the child with the child’s father or their partner. For a parent to be eligible to take Shared Parental Leave they must be an employee and they must pass the continuity of employment test. In turn, the other parent in the family must meet the employment and earnings test.
A mother or adopter does not have to have actually ended their maternity or adoption entitlements for shared parental leave to start for their partner. Provided they have given advance notice reducing their maternity or adoption entitlements, their partner can start to take shared parental leave, meaning they could both be off work at the same time. Alternatively, the mother or adopter could return to work for part of the time, while her partner is on leave, and then resume her leave at a later date.
Mothers and adopters must still take the two week period of compulsory maternity leave after birth (four weeks for factory workers), or the equivalent first two weeks of ordinary adoption leave. Thereafter, parents or adopters are jointly entitled to share a pot of 50 weeks shared parental leave, which must be taken within the 52 weeks from the date the child is born or date of adoption placement.
If an employee wishes to take shared parental leave, they must provide their employer with a notice of entitlement at least eight weeks before the start of a period of leave.
An employee is entitled to submit three separate notices to book or vary leave. Leave must be taken in complete weeks and may be taken either in a continuous period, which an employer cannot refuse, or in a discontinuous period (involving different periods of leave), which the employer can refuse and require that the total weeks of leave in the notice be taken in a single continuous block.
If the mother or adopter curtails their entitlement to maternity/adoption pay or maternity allowance before they have used their full entitlement then shared parental pay can be claimed for any remaining weeks.
To qualify for shared parental pay a parent must, as well as passing the continuity of employment test, also have earned an average salary above the lower earnings limit for the eight weeks’ prior to the 15th week before the expected due date or matching date.
Paid paternity leave of two weeks will continue to be available to fathers and a mother’s or adopter’s partner, which cannot be taken at the same time as maternity leave. Additional paternity leave will be removed and replaced by shared parental leave.
Depending on the circumstances involved, there are four outcomes available to an employer once they have received, considered and discussed a shared parental leave notification. It is important to note an employer cannot refuse a notification for continuous leave.
A) Confirm a continuous leave period or accept a discontinuous leave request.
B) Agree a modification to a leave request (an employee is under no obligation to modify a continuous leave notice and should never be put under any pressure to do so).
C) Refuse a discontinuous leave notification.
D) Whilst it is not good practice and should be avoided, it is possible for an employer to make no response to a leave notification.
Discuss your intentions sooner rather than later
Having an early and informal discussion can provide an opportunity for both the employee and employer to talk about their preference regarding when shared parental leave is taken. Employers can use this discussion as an opportunity to point out the different options such as maternity, paternity leave (or adoption leave), and can ensure the employee is aware of their statutory rights or any contractual schemes the employer has in place. It can also be an opportunity to discuss when any discontinuous leave can be best accommodated.
Employers not only face a daunting task understanding and implementing the new rights, but also their family-friendly policies will require a major overhaul, including the drafting of a new shared parental leave policy. If you wish to find out more about how we can help you, please do not hesitate to contact us.
Employment law solicitor