Shared Parental Leave & Pay
Shared Parental Leave (ShPL) is a new right that will enable eligible mothers, fathers, partners and adopters to choose how to share time off work, after their child is born or placed for adoption. This could mean that the mother or adopter shares some of the leave with her partner, perhaps returning to work for part of the time and then resuming leave at a later date. The Regulations are due to come into force on 1st December 2014. The options to use the new ShPL rights will apply for parents who meet the eligibility criteria, 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 could start to receive notice of eligibility and the intention to take ShPL from qualifying employee from January 2015.
Key Points
Employed mothers will continue to be entitled to 52 weeks of Maternity Leave and 39 weeks of Statutory Maternity Pay or Maternity Allowance.
If they choose to do so, an eligible mother can end her maternity leave early, and with her partner or the child’s father, will be able to opt for ShPL instead of Maternity Leave. If they both meet the qualifying requirements and both qualify, they will need to decide how they divide their total ShPL and Pay entitlement.
ShPL can be taken by both parents at the same time or in turns.
Paid Paternity Leave of two weeks will continue.
Adopters will have the same rights to ShPL and Pay.
Intended parents in surrogacy who meet certain criteria, will be eligible for Statutory Adoption Leave and Pay, and ShPL and Pay.
Fathers, partners and, in certain circumstances intended surrogacy parents, will be entitled to unpaid time off to attend up to two ante-natal appointments.
Additional paternity leave and pay will be abolished.
Shared Parental Leave (ShPL)
ShPL is designed to give parents more flexibility in how to share the care of their child, in the first year following birth or adoption. Eligible parents will then be able to share the remaining maternity leave and pay between themselves.
To qualify for ShPL and Pay, a mother must be entitled to Maternity or Adoption Leave, or Statutory Maternity or Adoption Pay or Maternity Allowance, and must share the main responsibility for caring for the child with the child’s father or her partner. In addition, they will be required to follow a two step process to establish eligibility.
Step 1 – Continuity Test:
A mother seeking to take ShPL must have worked for the same employer for at least 26 weeks, and be still employed at the end of the 15th week before the week in which the child is due (or at the week in which an adopter was notified of having been matched with a child or adoption) and be still employed in the first week that ShPL is to be taken.
The other parent has to have worked for 26 weeks in the 66 weeks leading up to the due date, and have earned above the Maternity Allowance threshold of £30 week in 13 of the 66 weeks.
Step 2 – Individual Eligibility for Pay:
To qualify for Shared Parental Pay (ShPP), the parent must, as well as passing the continuity test, also have earned an average salary of the lower earnings limit or more (currently £111) for the 8 weeks’ prior to the 15th week before the EWC.
It will be for the mother or adopter to continue on maternity leave, or opt to take Shared Parental Leave. A mother is normally entitled to Statutory Maternity Pay/Adoption Pay/Maternity Allowance for up to 39 weeks. If the mother gives notice to curtail (reduce) their entitlement before they have received the full 39 weeks, then any remaining weeks could become available as Shared Parental Pay (ShPP). If both parents qualify for ShPP, they must decide who will receive it, or how the pay will be divided, and they must each inform their employer of their entitlement. Both parents cannot receive the ShPP at the same time. If an employees employment comes to an end whilst they are still entitled to some ShPP, then any remaining weeks will remain payable by the employer, unless the employee has started working elsewhere.
ShPL may be taken at any time within the period which begins on the date the child is born, or date of the placement, and ends 52 weeks after that date. 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, which the employer can refuse.
Ante-Natal Appointments
All pregnant employees are entitled to reasonable time off with pay for antenatal care, made on the advice of a registered medical practitioner. Except for the first appointment, employees should show the employer, if requested, an appointment card or other documents, showing that an appointment has been made.
Fathers and partners of pregnant women are now entitled to unpaid time off to attend two ante-natal appointments (from 1st October 2014), from day one of their employment.
Intended parents in a surrogacy case who meet the conditions set out under the Human Embryology and Fertilisation Act 2008, will a also have the right to unpaid leave to attend up to two antenatal appointments.
So How Will the New Regulations Work in Practice?
Requesting Shared Parental Leave
Technical Guidance for Employers was published in September and is available on the BIS website which is supposed to help us understand and operate the new Shared Parental Leave process. That guidance is 56 pages. ACAS have subsequently published a good practice Guide of Employers and Employees which is 42 pages and a one page four step summary guide available from their website. The following sets out the process but only in the briefest of terms.
Parents who qualify for the right will need to decide if ShPL is the best option for them. Ultimately it is for the mother or primary adopter to decide whether to end their maternity or adoption leave early and opt into ShPL. They will need to consider their personal circumstances and should take into account such things as:
Who qualifies for Shared Parental Leave?
When does the mother wish to return to work?
The financial implications.
How the sharing of the upbringing of the child could work?
Parents can choose to opt into ShPL at any time, so long as there is some untaken maternity leave to share.
An employee opting for ShPL must notify his or her employer of their entitlement to ShPL, and must book the leave they wish to take otherwise known as ‘EU holiday’). EU holiday is only 4 weeks which is shorter than the UK entitlement of 5.6 weeks. This means that any employer who pays basic pay only during holiday is at risk of a claim for the value of supplemental payments including shift premiums guaranteed and non-guaranteed overtime and other regular payments, they must provide their employer with a notice of entitlement to take ShPL. The notice must be given at least 8 weeks before the start of a period of ShPL. Each parent entitled and intending to take ShPL, must give their employer a notice which must include:
How much leave is available?
How much leave they are entitled to take?
How much leave the parent is intending to take?
How they expect to take it?
Any notice to book ShPL must be given at least 8 weeks before the leave is due to start.
Discussing Intentions Early On
Having an early and informal discussion can provide an opportunity for the employee and employer to talk about their preference regarding when ShPL is taken. This is particularly important in helping to decide whether the employer needs to recruit a maternity leave replacement for the full 12 months maternity leave, for clearly if the employee is thinking of coming back earlier, this will impact on the length of the maternity leave cover required.
Employers can use this discussion as an opportunity to point out the different options, such as maternity leave, 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 or how any discontinuous leave can be best accommodated.
Discussing a Request for Shared Parental Leave
Once a notification for such leave has been received, employers should consider:
Is the request for leave one continuous block or discontinuous blocks?
Arranging a discussion with the employee to clarify their intentions and how they think discontinuous blocks would work practically.
What cover will be needed for the employee’s absence?
Is any modification to a discontinuous leave request necessary?
An employer cannot refuse a request for continuous leave from either the mother or the partner.
These are the likely outcomes available to an employer for a request for discontinuous leave:
a. if the employer is in agreement, it can be unconditionally accepted
b. reject the request in its present form
c. propose changes to the request
d. insist the employee takes the leave in a continuous block
e. if the employer and employee cannot agree within two weeks from their written request, then the employee can withdraw their request or take the leave requested as a single continuous period
f. agree a mutually acceptable variation
Parental Leave
Parental leave is for employees to take time off work to look after a child’s welfare; this leave is normally unpaid and is a different statutory right that has existed for many years. At present, this leave can be taken up to the child’s 5th birthday; however, in April 2015 the age limit will increase to under 18 year. Parental Leave should not be confused with Shared Parental Leave.
Shared Parental Leave In Touch (SPLIT) days
Each parent will have the right to have up to 20 Shared Parental Leave In Touch (SPLIT) days during ShPL (this is in addition to the 10 KIT days allowed during maternity and adoption leave.)
Enhanced Maternity Pay
Very few of our clients offer an enhanced maternity pay scheme to their employees. There is no requirement to top up Statutory Maternity Pay. Now is definitely not the time to decide on enhancing maternity pay because it is likely that case law will decide whether enhanced maternity pay provisions should equally apply to male colleagues when requesting Shared Parental Pay.
Other issues
Many people are abbreviating Shared Parental Leave to SPL; we prefer the term ShPL as it clearly distinguishes it from Statutory Paternity Leave also known as SPL.
Much of the regime is based on trust. There is no requirement to check information provided but you may do so. There is some limited scope for obtaining information about fathers who do not work for you, but we take the view that you should check what you can, if you feel you need to do so. There is also plenty of scope for disciplining employees who tell lies, in our Handbooks (fraud, dishonesty and falsification of records).
Please ensure that your Managers are aware of the law and do not make sexist/ discriminatory comments to men who make such requests!
The detailed rules are very complicated and it is possible to overthink all the possible permutations of requests; we are trying to keep it fairly simple!
This is just a summary of an extremely complex set of arrangements that we have yet to see working on a practical level. We do not anticipate a significant take up on this new statutory right. Only time will tell how popular or not this will become. Our Consultants will be pleased to advise you on any element of the issues arising from this newsletter.
