The new system of Shared Parental Leave (SPL) is available to parents of children due to be born or placed for adoption on or after 5 April 2015. It allows women to curtail their right to maternity leave to enable their partner to take SPL. Eligible parents can share 50 weeks’ leave and 37 weeks’ pay between them flexibly, with similar rules applying for adopters.
The Children and Families Act 2014, supported by the Shared Parental Leave Regulations 2014, introduced a new entitlement for employees who are parents to take SPL in the first year of their child’s life, or in the first year after their child is placed for adoption. Both parents are entitled to take SPL at the same time, which is one of the key features of the new system.
The Regulations apply to babies who’s expected week of childbirth (EWC) is on or after 5 April 2015, and to children placed for adoption on or after 5 April 2015. The actual date of birth is irrelevant for these purposes.
So how will it work in practice?
In relation to births, a mother who is entitled to statutory maternity leave, statutory maternity pay, or maternity allowance, may curtail her entitlement so that she and the child’s other parent may share the balance of the leave, pay, or allowance period as SPL. The mother may share any SPL with the child’s other parent with whom she shares the main responsibility for the care of the child, who is the child’s father, a person to whom she is married or in a civil partnership with, or the mother’s partner (including same sex partner).
The SPL scheme does not require both parents to be employees, but does require them to be economically active, which is determined according to the same as the test of economic activity for maternity allowance.
To qualify for SPL, the employee must satisfy the continuity test; they must have 26 weeks’ continuous employment up to and including the 15th week before the EWC and must still be employed in the week that the SPL is due to start. In addition, the other parent must satisfy the employment and earnings test; they must either be employed or self-employed for 26 weeks of the 66 weeks leading up to the EWC and must have earned an average of £30 a week for the 13 highest earning weeks in the 66 weeks.
In order to qualify for Shared Parental Pay (ShPP) the employee must:
- Meet the eligibility requirements for SPL;
- Have normal weekly earnings in the 8 weeks before the EWC of not less than £111;
- Continue in employment between the 15th week before the EWC and the last week before taking SPL;
- Comply with notification requirements (similar to SPL); and
- The other parent must satisfy the employment and earnings test.
For parents to participate in the SPL scheme, the mother or primary adopter must either return to work or curtail their maternity or adoption leave by serving the appropriate notice. At the same time, the mother must serve a notice of entitlement and intention to take SPL or a declaration that the other parent has served such notice.
After eligibility for SPL has been established according to the applicable criteria, there are also notification and evidence requirements for ShPP which consist of notices and declarations from the each parent to both employers.
Each parent wishing to take SPL will be able to serve up to 3 periods of leave notices on their employer, which must be served at least 8 weeks before the start date requested for any period of SPL.
SPL can be requested as a continuous block or as discontinuous periods i.e. 2 weeks off, 2 weeks on, 2 weeks off and so on. Where an employee requests one continuous period of SPL, they will be entitled to take that period of leave. Where an employee requests discontinuous periods of SPL, the employer may consent to the periods of leave requested, propose and agree alternative dates/patterns for the periods of leave, or refuse the request. The Employer has 14 days in which to deal with the request if it is not agreed.
If a request for discontinuous periods of SPL is refused or alternative arrangements cannot be agreed, the employee can either retract the notice (with it then not counting towards their 3 notices) or take the entire amount of leave requested as a continuous block. If the latter, the leave will start on the first date requested, or an alternative date specified by the employee.
As is currently the case during a period of statutory maternity, paternity or adoption leave, during a period of SPL, an employee is entitled to receive the benefit of their terms and conditions of employment (except pay) and the same rights to return to the same job, or a suitable alternative. An employee may work for up to 20 days (with agreement) during the SPL period without bringing their leave to an end, as is the case with ‘Keeping in Touch’ days currently.
The new SPL and ShPP regime has provided for a complicated notification procedure, although thankfully the onus is on employee’s to provide the correct documentation and declarations within the correct timeframes. Employers can request further information to verify that an employee is entitled to SPL/ShPP subject to certain conditions; however, employers should proceed with caution when questioning the accuracy of what is provided.
It will be interesting to see how popular the new SPL scheme will be with employees. From our experience, some employees initially interested in taking SPL have been put off by the complexity; however, it is likely to be more popular than the outgoing additional paternity/adoption leave as both parents can take leave together.
Employers will need to give serious thought about what is best for them when they receive a request for discontinuous periods of leave – losing an employee for a block of time or the leave being ‘stop/start’. In any event, it will be important that an employee is not subjected to any detriment due to any requests for SPL that they may make.
If you would like any advice in relation to Shared Parental Leave or have any other day to day employment law or HR queries, please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.