On 1 December 2014 the new right for eligible parents to share parental leave and pay where the woman chooses to bring her statutory maternity leave and pay to an end early came into force. We consider the key elements of this new regime.
Whilst the statutory scheme is in force now, it only applies to babies born or children placed for adoption on or after 5 April 2015. Unfortunately, this does not leave much time for employers to get to grips with the new regime as it will affect employees who are just discovering that they are due to be parents and employers could start receiving notifications to share parental leave from January 2015.
In summary, the employee wishing to take leave must:
- have 26 weeks' continuous service by the 15th week before the week when the baby is expected to be born, or for an adoption case by the week in which they are notified of being matched
- still be employed in the week before any shared parental leave is due to start
- share the main responsibility for the care of the child with their partner and the partner must have sufficient earnings to meet the employment and earnings test.
In addition, for the employee to be entitled to statutory shared parental pay they must have earned no less than the lower earnings limit.
There are essentially 3 different types of notice which need to be provided in order to exercise the right to take shared parental leave:
- the mother or primary adopter must serve notice to bring their maternity or adoption leave to an end. Individuals who are not themselves eligible to take the leave but whose partners are must serve notice to bring their maternity or adoption pay or maternity allowance period to an end
- an entitlement notice will be needed to confirm the employee's and their partner's eligibility to take shared parental leave and give a (non-binding) indication as to when the employee intends to take shared parental leave
- a booking notice is needed to confirm the actual dates of shared parental leave requested at least 8 weeks before the period of leave is to start. Any leave arrangements already notified to the employer can be changed by means of a notice to vary the leave, provided 8 weeks notice is given of the revised start date for the leave. An employee has up to 3 opportunities to book or vary leave, although it is open to employers to allow additional opportunities and an exception applies to the notice requirements where the baby is born early.
How much leave is available to share?
A maximum of 50 weeks shared parental leave and 37 weeks of statutory shared parental pay will be available and can be taken at any time within 52 weeks of the baby's birth or the child's placement with the adoptive parents. The actual amount of leave and pay available to a particular employee will depend on how much maternity or adoption leave, and pay, has been taken.
How is leave shared in practice?
Shared parental leave can be taken in a single continuous block, or may be taken in smaller blocks interspersed with time at work. However, employees will be required to take a minimum of a week's leave at a time. Provided both parents meet the eligibility criteria, they can take leave at the same time, or can alternate the taking of leave.
Only where a pattern of discontinuous leave is requested does an employer have the opportunity to discuss the pattern with the employee and either agree it, agree an alternative pattern or refuse the leave requested.
Returning to work
During shared parental leave employees are entitled to all their normal terms and conditions of employment except in relation to pay. Where an employee has taken a total period of leave (including maternity, paternity, adoption or shared parental leave) which is 26 weeks or less they are entitled to return to the same job. Where the total period of leave is more than 26 weeks then they are entitled to return to the same job or if that is not reasonably practicable to another job, which is suitable and appropriate for them.
An employee entitled to shared parental leave will also have the benefit of 20 shared parental leave in touch (SPLIT) days in which they can carry out work for their employer without bringing their period of shared parental leave to an end. During periods of shared parental leave, employers must keep in touch with the employee who is away from work and keep them reasonably informed about everyday issues (such as staffing changes and job opportunities).
Protection for employees
Employees have the same right not to suffer a detriment, discrimination or be unfairly dismissed in connection with the right to shared parental leave in the same way as an employee electing to take maternity or adoption leave.
Practical Points for employers
- update handbooks and consider what steps to take to inform employees of their new rights
- engage with employees to secure flexibility, co-operation and agreement to leave arrangements that are suitable for the employer
- consider how far to go beyond the statutory minimum requirements in offering enhanced pay and benefitsrespond in writing to shared parental leave notification requests and variations
- avoid condoning a culture where caring responsibility for children is exclusively for mothers and ensure that all requests for shared parental leave are handled fairly and consistently