Shared Parental Leave | What you need to know
The new provisions on shared parental leave came in to effect on 1st December 2014 and apply to children born on or after 5th April 2015.
The law and procedure can be found in the Children and Families Act 2014 which inserts new provisions in to Part 8 of the Employment Rights Act 1996, the Shared Parental Leave Regulations 2014 and the Statutory Shared Parental Pay (General) Regulations 2014 which amends the Social Security Contributions and Benefits Act 1992.
How does shared parental leave fit in with existing family friendly policies?
• There are existing family friendly rights in employment law which will exist separately of shared parental leave.
• Maternity rights – these relate to paid leave to attend antenatal appointments and 52 weeks maternity leave of which 39 weeks is paid and 13 weeks is unpaid. The Children and Families Act 2014 will extend this right to employees and agency workers who have “a qualifying relationship” with a pregnant woman or her child so this will include spouses as well as commissioning couples in a surrogacy arrangement. This came in to force on 1st October 2014 and there is no qualifying period of employment for this right (see s.57ZE of the Employment Rights Act 1996 as amended by the Children and Families Act 2014). See Maternity and Adoption Policy
• Paternity rights - these currently consist of 2 weeks ‘ordinary paternity leave’ and pay at a flat rate and ‘additional paternity leave’ of up to 26 weeks if the mother has returned to work without using up her full maternity leave (so 26 or the unclaimed balance if less) plus statutory pay. From April 2015 additional paternity leave will be abolished. See Parental and Paternity Policy
• There is a further right to unpaid paternity leave after one year’s employment of 18 weeks per child which can be taken between the child’s birth and their fifth birthday (or 18th birthday in the case of a disabled child). However, it is to be taken in blocks of one week and no more than 4 weeks in any one year. Statistics suggest that only 0.6% of eligible employees take advantage of it (see TUC report June 2013). See Parental and Paternity Policy
• Adoption leave and pay is available for those who have had a child placed with them. Leave is up to 52 weeks (same as maternity leave) and pay equivalent to statutory maternity pay (SMP) i.e. 90% of average earnings for first 6 weeks and a flat rate for remaining 33 weeks. From April 2015 adoption pay will be brought in to line with maternity pay so that the right to adoption leave and pay applies from the first day of employment. See Maternity and Adoption Policy
• Flexible working requests – these are the rights of all employees to request flexible start or finish times or to work from home (it applies to all employees from June 2014 not just parents and carers). See Flexible Working Policy
How does shared parental leave work?
• New provisions on shared parental leave came in on 1st December 2014, but only apply to children born or placed for adoption on or after 5th April 2015.
• It applies to those who share the primary responsibility for the child with another parent at the time of birth/placement for adoption and this includes mothers, fathers, adopters who married or in a civil partnership or living together in a long term relationship. It also applies to parents who have applied to the court for a Parental Order following a surrogacy arrangement.
• Leave can only be taken in the first year of the child’s birth or placement for adoption and so to that extent is not as generous in length in terms of years as paternity leave.
• Shared parental leave is not compulsory – it will be assumed that on the birth of a child maternity/adoption leave will be taken until such time as the employee confirms that they wish to take shared parental leave.
• Whilst the child’s other parent can share maternity leave or adoption leave and also take paternity leave, additional paternity leave will be abolished in April 2015 and so only ordinary paternity leave will apply.
• Shared parental leave is triggered by the mother (in the case of births) or the primary adopter (in the case of adoption) curtailing their maternity/adoption leave to allow their partner to share the balance of the leave. The leave can be taken by both at the same time. The leave can also be stopped and started (three notices booking leave are allowed or employers can decide to allow more). The leave can be taken as a continuous block or discontinuous blocks of not less than one week. In the case of a request to take the leave in discontinuous blocks the employer is entitled to a two week period to discuss with the employee alternative patterns of leave. However, if the employer and employee cannot agree the employee will be allowed to take their leave in a discontinuous block. This is more generous that maternity/adoption leave which have to be taken in a single continuous block.
• The mother/adopter/parent who triggers shared parental leave must meet the ‘continuity of employment test’ – i.e. have worked for the same employer for 26 weeks at the end of the 15th week before the child’s expected week of childbirth/matching date and is still working for the same employer at that date. The other parent who wishes to share in the leave must satisfy the ‘employment and earnings test’ – must have worked for at least 26 weeks in the 66 weeks leading up to the child’s expected week of childbirth/matching date and earned an average of at least £30 a week in any 13 weeks.
• The leave can only be shared with one other person
• Those sharing leave must be either employed or ‘economically active’ meaning they must be self-employed at least 26 of the 66 weeks before the expected week of childbirth (the week beginning with midnight between Saturday and Sunday in which it is expected the child will be born).
• Entitlement is in reality to up to 50 weeks leave (equivalent of maternity leave minus the compulsory 2 week period).
• The employee must give eight weeks notice to the employer and leave must be taken within 1 year of child’s birth/adoption. The notice must be in writing and dated and set out clearly the period of leave. The exception to this is if the child is born before their expected due date and leave had been booked for after the due date they can take this same period of leave earlier without having to resubmit another notice within the 8 week period. If the child is born more than 8 weeks before the due date and no notice has been given then it should be given as soon as reasonably practicable.
• It is possible to vary the allocation of leave if notify each employer in writing and it is signed by both parents to confirm they are in agreement.
• SPL only applies to one child per birth (so multiple births do not lead to increased leave)
• IF the child dies before notice of entitlement to SPL is submitted then no SPL can be taken but if child dies after SPL notice and leave has been booked, can still take leave but no further leave bookings can be made.
• It is the employee’s responsibility to check they are eligible for SPL not the employer’s. The employer can rely on the information and declarations provided by the employee. The employer only needs to check the continuity of employment and earnings criteria
• An employer can request a copy of the child’s birth certificate and the employee’s partner’s employers’ details within 14 weeks of receiving the notice of entitlement to SPL.
What is the entitlement to shared parental pay?
• Pay can also be shared and is known as Shared Parental Pay (ShPP). To qualify the mother/adopter/other parent must also have earned above the ‘Lower Earnings Limit’ in the eight weeks leading up to and including the 15th week before the child’s due date/matching date
• The current rate for ShPP is the same as the current rate for maternity and adoption pay.
• Entitlement is in reality up to 37 week’s pay (39 weeks minus the first two weeks of maternity/adoption pay).
• Mother/adopter/other parent must have given leave to end their maternity/adoption pay period or Maternity Allowance period. The notice to end maternity/adoption leave will be binding and cannot be withdrawn unless 1) the mother’s partner dies, 2) the notice was given before birth and is withdrawn up to six weeks following the birth 3) it transpires within 8 weeks of the mother submitting notice to end maternity/adoption leave that neither parent qualifies for SPL and ShPP.
Will an employee taking shared parental leave be entitled to return to the same job after the leave has ended?
• There is protection of employment rights whilst on SPL and it is the same as the protections for maternity/adoption. E.g. if a redundancy situation arises an employee on SPL must be offered a suitable alternative position.
• Some reasonable contact between the employer and employee during the SPL is permitted and are known as Shared Parental Leave in Touch Days (SPLIT). An employer and employee can agree up to 20 SPLIT days (this is in addition to the 10 Keep-in-touch days for maternity/adoption, leave). Such leave is used where it would be beneficial for an employee to attend a work related or training activity day to help them return to work. See Shared Parental Leave Policy - as part of the Employers Pack