From 1 December 2014 new statutory provisions came into force entitling employees who are parents to shared parental leave in the first year of the child’s life or the first year after the child’s placement for adoption.
Maternity and adoption leave remain statutory rights and in fact are the default position for women giving birth or the primary adopter, respectively. However, the additional paternity leave and additional paternity pay are no longer in effect. Ordinary paternity leave and pay continue to apply.
Shared parental leave is the right for eligible parents to share 50 weeks of parental leave and 37 weeks of shared parental pay.
The first two weeks of adoption or maternity leave cannot be shared but once the mother, in the case of births, or primary adopter, in the case of adoption, ends the maternity or adoption leave the untaken leave can be shared with the other parent.
The right to shared parental leave applies once the mother or primary adopter return to work from their maternity or adoption leave, as appropriate, or curtail their leave.
For example, a woman may take maternity leave of 6 weeks, 2 of which are compulsory maternity leave. If she ends her maternity leave at 6 weeks, there remains 46 weeks for both parents to share, either consecutively or concurrently and provided that they are eligible.
For mothers or primary adopters who are not employed but are economically active then it is for them to curtail their statutory maternity pay, statutory adoption pay or maternity allowance period.
Both parents do not have to be in employment for an employee to take shared parental leave but essentially they both need to be economically active. That is, the partner of the person seeking leave from their employment must have worked on an employed or self-employed basis for a minimum of 26 weeks in the 66 weeks immediately preceding the EWC or in the case of adoption, the week they were notified of the match and to have earned on average at least £30 a week based on any 13 of those weeks (“the economically active test”).
A parent is either:
Any employee wishing to take shared parental leave must:
Where it is M wanting leave, then she will also have to satisfy the following conditions:
Where it is P wanting leave, he/she will also have to satisfy the following conditions:
Where it is A wanting leave, then he/she will also have to satisfy the following conditions:
Where it is AP wanting leave, then he/she will also have to satisfy the following conditions:
This is notice that the mother or primary adopter must give the employer to curtail their leave. The leave curtailment notice must be in writing and state the date when the mother or primary adopter intends the maternity or adoption leave to end (“the end date”) and must be given at least 8 weeks notice prior to the end date. The end date must be at least one day after the compulsory maternity period, or in the case of adoption, at least two weeks after the first day of the statutory adoption leave period, and at least one week before the last day of the additional maternity or the statutory adoption leave period.
Mothers or primary adopters who are not eligible for statutory maternity leave but who receive maternity pay (SMP), statutory adoption pay (SAP) or maternity allowance (MA) will need to curtail these pay periods. In these circumstances, the mother or adopter will need to submit an SMP, SAP or MA period curtailment notice. The curtailment notice must be in writing and state the dates that M or A wants the SMP, SAP or MA period to end. This must be after the end of the compulsory maternity period or at least 2 weeks after the first day of the statutory adoption leave period, at least 8 weeks after the date the curtailment notice is submitted and at least one week before the last day of the SMP, SAP or MA period. The curtailment notice is to be submitted to whoever is responsible for paying the SMP or SAP or the Secretary of State (DWP) in the case of MA.
Once the relevant period of leave or pay has been curtailed P will be entitled to 52 weeks shared parental leave less the period of maternity or adoption leave or SMP, SAP or MA period taken by the curtailment date. A leave curtailment notice can be revoked in particular circumstances. If your employee seeks to revoke their leave curtailment notice please contact your HR Rely Advisor.
The notice is not binding unless it indicates otherwise.
The following must be included in the notice:
The notice must also include the following declarations:
A signed declaration by M (childbirth) or A (adoption) that:
A signed declaration by P (childbirth) or AP (adoption) stating:
The following information must be included in the written notice:
The following declarations also need to be provided:
A declaration signed by P or AP (as appropriate) stating the following:
A declaration signed by M or A (as appropriate) stating the following:
In relation to the above, if A or AP give notice of entitlement before the child is placed for adoption, each must give their employer the placement date as soon as reasonable practicable after the placement and before the first period of shared parental leave is to be taken.
M or P, or A or AP may vary how much shared parental leave they intend to take by giving notice containing the following:
An employee who wishes to take shared parental leave will have to give their employer notice of their entitlement to take shared parental leave and their intention to do so. This must be provided at least 8 weeks prior to the start of the first proposed period of shared parental leave and state the date when each period of leave is to start and the end date for each period of leave. Included with this notice must be a declaration from the other parent, consenting to the proposal to take shared parental leave.
An employer may request the following:
A copy of the child’s birth certificate or documents notifying the primary adopter that the child was to be placed with them (as appropriate)
Such request must be made within 14 days of the employee giving notice of intention to take shared parental leave.
Once the notice of entitlement has been given, an employee will still need to finalise the dates of their requested leave and give the employer a period of leave notice (see below) at least 8 weeks before the first start date.
The amount of shared parental leave available to take is calculated by starting with the 52 weeks available leave and deducting the amount of statutory maternity or adoption leave or the amount of statutory maternity pay/allowance or statutory adoption pay that the mother or in the case of adoption, primary adopter takes before returning to work or curtailing their entitlement. The balance is what remains for the parents to take as shared parental leave and it is for the parents to decide how to share the remaining leave although shared parental leave must be taken in complete weeks. Neither parent will be able to take shared parental leave unless the other has signed a notice of entitlement and intention to take shared parental leave.
Every week that the mother has on maternity leave, or the primary adopter on adoption leave, serves to reduce the amount of overall shared parental leave available. However the statutory paternity leave of 2 weeks will not operate to reduce the shared parental leave entitlement.
shared parental leave can be taken concurrently with the other parent taking other periods of leave. This means that both parents can take shared parental leave at the same time, or the mother could take shared parental leave whilst the other parent is on statutory ordinary paternity leave and there is the suggestion by the Government that shared parental leave can be taken by the parent whilst the mother is on maternity leave, provided that the mother has given binding notice to end her maternity leave or maternity pay if she is not entitled to leave.
The parents have only one entitlement to shared parental leave irrespective of the number of children born from any one pregnancy or placed for adoption at any one time and that entitlement must be taken before the child’s first birthday or the first anniversary of the date on which the child was placed for adoption, whichever applies.
M must return to work or have curtailed her maternity leave, maternity pay or allowance period in order for either M or P to participate in shared parental leave.
M must give her employer the following:
These must also be given to P’s employer at the same time.
If M is not eligible for statutory maternity leave, she must submit an SMP period curtailment notice to end the SMP period. In addition M and P must satisfy one of the following:
If M is only eligible for maternity allowance, then M will need to end the Maternity Allowance period by submitting a Maternity Allowance curtailment notice. In addition P must be entitled to shared parental pay or shared parental leave.
A must return to work or have curtailed his or her adoption leave or adoption pay in order for either A or AP to participate in shared parental leave.
A must give his or her employer the following:
These must also be given to AP’s employer at the same time.
If A is not eligible for statutory adoption leave but receives SAP, then he or she must submit an SAP period curtailment notice and A and AP must satisfy one of the following:
An individual wanting to take leave must give a period of leave notice setting out the start and end dates of each period of leave. This must be given 8 weeks before the start date requested. It may be given at the same time as the notice of entitlement and intention to take shared parental leave and may give notice for more than one period of leave.
The period of leave notice must set out the start and end dates for each period of shared parental leave requested in that particular notice.
In the case of the birth of a child, if P gives 8 weeks notice wishing to start shared parental leave two weeks after the Expected Week of Confinement (EWC), the 8 weeks notice requirement will be deemed to be satisfied if the child happens to be born before the EWC. If the period of leave notice is given prior to the child being born then it may contain a start date that is the day on which the child is born or is a number of days following the child’s birth and the end date may be stated as a number of days following the day of the child’s birth.
In the case of adoption of a child, if the period of leave notice is given prior to the child being placed with A and AP, the period of leave notice may contain the start and end dates stated as a number of days following the placement.
Once entitled to shared parental leave, an employee may provide written notice requesting a variation of that period of leave. A variation notice must state the period of shared parental leave the employee is entitled to and then seek to vary on any of the following basis:
The same procedure applies on variation as for an initial period of leave.
If the employee seeks to vary a period of leave due to a child being born early, please contact your HR Rely advisor for advice.
An employee may choose to take one continuous period of leave or alternatively discontinuous periods of leave.
The employee will be entitled to take leave where the request is for one period of continuous leave.
If the request is for discontinuous leave, then in the two weeks beginning with the date the period of leave notice was given the employer has the option of either agreeing to all of the periods of leave requested, proposing alternative dates for the periods of leave or refusing the periods of leave and not proposing alternative dates.
The employee will be entitled to take the total amount of leave requested in the period of leave notice as one continuous period of leave in the event that the employer refuses that leave requested and the employer and employee are unable to reach agreement within the two week period. Alternatively, the employee has until the 15th day after the period of leave notice was given to the employer to withdraw the notice.
Should the employee choose to take the leave as a continuous period, then the employer must, within 5 days from the end of the two week period, choose a start date. The start date must be communicated to the employer and must be at least 8 weeks after the date the period of leave of notice was given. Where an employee fails to provide a start date, the start date will be the start date for the first period of leave requested.
Shared parental leave will apply in a similar way to statutory maternity, adoption and paternity leave in that the terms and conditions of employment continue to apply, except for those that relate to remuneration.
Similar to KIT days under maternity leave and adoption leave arrangements, the employee on shared parental leave may make reasonable contact with the employer, and vice versa, during the shared parental leave period.
An employee may work up to 20 days during the shared parental leave period, otherwise known as “shared parental leave in touch” (SPLIT).
Attending for a SPLIT day does not extend the shared parental leave period and in any event is subject to both parties agreement.
An employee who takes shared parental leave is entitled to return to the job that they were employed in prior to their absence, provided that the total period of leave taken (including any other statutory leave taken in relation to the same child e.g. ordinary maternity leave) is 26 weeks or less.
If shared parental leave was the last of two or more consecutive periods of relevant statutory leave e.g. additional maternity leave, parental leave of more than 4 weeks etc, then the employee is entitled to return to another job that is suitable for them and appropriate for them to do in the circumstances, where it is not reasonably practicable for them to return to the job they were employed in prior to shared parental leave.
The employee has the right to return with the seniority and pension rights etc as if they had not been away on shared parental leave and with terms and conditions no less favourable.
If an employee is at risk of redundancy during the period of shared parental leave and there is a suitable alternative position with the employer, or the employer’s successor or an associated employer, the employee must be offered that vacancy. Failure to do so entitles the employee to bring a claim for automatically unfair dismissal.
These protections apply in relation to an act or dismissal that takes place after 1 December 2014.
It is unlawful to subject an employee to a detriment or any deliberate failure to act or to dismiss an employee because:
If the employee is dismissed for one of the above reasons, the dismissal will be automatically unfair. It will also be automatically unfair to select an employee for redundancy for the same reasons.
In certain circumstances, a leave curtailment notice may be revoked. If you receive a Revocation Notice, contact your HR Rely Advisor as to next steps.
We agree that the complexity of the shared parental leave regime creates significant risk. We recommend that you train a small number of people, for example your HR advisors, very thoroughly to understand the detail of the regime. Whilst it is crucial to communicate to managers that a new leave regime will be introduced, it may be safer from a risk management perspective to direct them to a designated ‘SPL champion’ rather than attempt to arm them with all the details. This approach could of course be supported with rolled-out training for key management staff and, for example, an FAQ section on your intranet or website.
If you would like us to provide training for your designated ‘champions’ and other managers please contact your HR Rely Advisor for further information.
Whether you choose to adopt a new shared parental leave policy or incorporate impending changes into your existing policies on family leave is a matter for your business.
On balance, our view is that it is probably simpler and ‘cleaner’ to introduce a new designated policy on shared parental leave, ensuring that the rules are carefully cross-referenced to existing policies on maternity or paternity leave. Alternatively, you may prefer to ‘build on’ an existing maternity or paternity policy. If you choose to adapt a policy rather than introduce a new one, it is probably advisable to ‘ring-fence’ the new arrangements to avoid confusion.
An example shared parental leave policy is available on our HR Rely website. Please contact your HR Rely advisor if you would like your existing policies reviewed.
If you require more information about any aspect of the shared parental leave regime please contact your HR Rely Advisor.
There is no legal requirement for an employer to make contact with the other parent’s employer. However, you are entitled to ask for a copy of the child’s birth certificate (or a declaration regarding details of birth) and the name and address of the other parent’s employer. The employee must provide this information if requested.
Our preferred approach would be to specify in your policy that you are entitled to request additional information. The easiest way to maintain consistency and avoid a potential complaint of discrimination would be to obtain and store the information in every case for use if a problem crops up. If you would rather avoid this administrative burden, you will need to be clear and consistent regarding the circumstances in which you will obtain additional information and investigate an employee’s entitlement to leave.
If you choose to contact the other parent’s employer you will need to ensure that you only ask appropriate and necessary questions and comply with your obligations under the Data Protection Act.
If you require more information about any aspect of the shared parental leave regime please contact your HR Rely Advisor.
Notification and business planning are likely to be the biggest challenges of shared parental leave.
If proper notice is given and all entitlement criteria are satisfied an employer must allow a request for a single continuous period of shared parental leave. However, if a single leave notice requests multiple ‘broken up’ periods of discontinuous leave an employer is entitled to refuse.
The ‘sting in the tail’ however is that employees are permitted to make up to three separate requests for leave. An employee who is refused a discontinuous leave pattern can therefore effectively ‘impose’ on the employer a maximum of three separate blocks.
In theory, it is possible to state in your policy that you will not allow requests for discontinuous leave. However, this is likely to create ill-will and in any event may be ineffective, as employees can to some extent negotiate around the refusal by requesting three separate continuous blocks of leave. If you strongly feel that discontinuous leave will disrupt your business, you might consider wording your policy to ‘encourage’ employees to take continuous leave only. Some commentators have suggested that employers might achieve this by offering enhanced pay for only the first block of leave. However, it is anticipated that some employees might challenge such an approach as imposing a detriment on them for wanting to take their statutory right to more than one block of SPL. We would be happy to advise on the best approach for you.
A clear and consistent approach to requests for discontinuous is important wherever possible to avoid grievances from members of staff, who feel that they’ve been treated poorly by comparison with colleagues and, in some cases, claims of discrimination. Although you are not obliged to provide reasons for refusing discontinuous leave it is best practice to do so and to carefully record your commercial rationale for declining the request.
Bear in mind though that there may be some circumstances in which discontinuous leave may benefit an employer. Remember too that an employee on shared parental leave can take advantage of 20 ‘SPLIT’ days (in addition to the 10 KIT days available to employees on maternity leave which can be used to allow some flexibility as an alternative to tricky patterns of discontinuous leave. Overall, the key message is that employers and employees should discuss their respective preferences at an early stage, thereby allowing an opportunity to find a mutually acceptable solution.
If you require more information about any aspect of the shared parental leave regime please contact your HR Rely Advisor.
It is of course possible that employees will choose to take busy or difficult periods off work or structure leave cleverly to maximise time away. For example, in the education sector, teachers’ unions have already briefed members on the possibility of taking shared parental leave during term time and ‘returning to work’ during fully paid school holidays.
However, where an employee chooses discontinuous leave this is far more likely to be driven by the needs of the family. For example, some mothers with other young children might choose to structure leave to be at home during the school holidays.
The Government guidance makes it very clear that there is no statutory obligation to enhance shared parental pay, even if your business operates an enhanced maternity pay scheme. The Government regards these as two separate regimes.
However, matters may not be this simple. It is unlikely that falling back on this assurance alone will be sufficient to offer absolute protection against potential claims of discrimination.
To complicate matters further the question of enhanced shared parental pay has in recent months become inextricably linked with employer branding and ethos. Offering an enhancement is viewed by many employers as a strong statement that the business is supportive of women’s careers and offers a family friendly working environment. There may be significant reputational benefits to offering an enhancement.
There are a wide variety of ways in which you can structure any enhancements to shared parental pay to limit the costs to your business whilst still offering employees a benefit over and above the statutory regime. For example, you may wish to specify that a mother who has taken a certain amount of enhanced maternity pay is not eligible to take enhanced shared parental pay also.
It may be possible to attach a variety of other conditions to enhancement. For example, you may wish to enhance pay for an employee’s first block of leave only. You will need to think carefully about what arrangements will be most cost effective for your organisation. We would be happy to help with this process.
Yes. It is possible to make special provisions regarding how much enhanced pay is available for situations where both parents are employed. For example, the Civil Service scheme allows for 26 weeks enhanced pay but specifies that this entitlement applies per family if both parents are employed. You will need to word your policy carefully to make it clear that any enhanced pay entitlement applies to the family and not to the individual to avoid the situation where both parents/partners claim that they are eligible for your full enhanced pay offering.
If both the mother and father are your employees they can choose who is entitled to shared parental pay. This decision will be driven by family economics. There is, for example, no reason why a mother cannot curtail her right to pay and allow a higher paid partner to take it.
This is obviously uncharted territory.
The limited case law guidance we currently have suggests that, where an employer offers enhanced maternity pay but only statutory minimum shared parental pay, a male employee would struggle to succeed in a claim of direct sex discrimination. This is because it is arguable that a father on shared parental leave should not compare himself to a mother on maternity leave but rather to a woman taking shared parental leave (which is available to both men and women).
However, it is at least possible that a male employee could successfully bring an indirect sex discrimination claim on the basis that this practice has a disproportionately negative impact on men (who do not have the option to elect to receive maternity pay). If the male employee was able to establish a case then the employer would have to demonstrate that the less favourable treatment was justified.
It is important to make sure that any shared parental pay available to women is equally available to men. If men and women are offered different enhancements this is likely to constitute sex discrimination.
Please contact your HR Rely advisor if you are unsure whether your proposed pay and leave structure may expose your business to claims of discrimination.
One other potential claim that might be raised where an employer offers enhanced maternity pay but not corresponding enhanced shared parental pay is that of being subjected to a detriment for taking SPL. An eligible woman might want to take SPL because of the increased flexibility that it offers but be discouraged from doing so due to the less favourable pay, and so subsequently bring a claim under the detriment provisions of the legislation.