- Shared Parental Leave and Pay - Understand the New Rules
- December 12, 2014
- Law Firm: Withers Bergman LLP - New Haven Office
The following definitions apply in this section:
Parent: One of two people (‘co-parents’) who will share the main responsibility for the child's upbringing (and who may be the mother, the father, or the mother's partner if not the father).
Partner: a spouse, civil partner or someone living with another in an enduring family relationship, but not a sibling, child, parent, grandparent, grandchild, aunt, uncle, niece or nephew.
Qualifying Week: the fifteenth week before the EWC.
What is shared parental leave?
Shared parental leave (‘SPL’) is a form of leave that may be available if a child is expected to be born or adopted on or after 5 April 2015.
It gives parents more flexibility in sharing the care of a child in the first year after birth or adoption. Assuming both co-parents are eligible, they will be able to choose how to split the available leave between them, and can decide to be off work at the same time or at different times. They may be able to take leave in more than one block.
The new leave regime operates in parallel to the existing rights of parents in birth or adoption situations. Hence it does not displace existing rights to maternity, adoption and paternity leave and pay but may be taken as an alternative to or in conjunction with these other rights.
As adoption is still relatively infrequent this note sets out the details of the new regime in relation to the birth of a child. The requirements in relation to the adoption of a child are broadly similar and details can be found by following the links set out below. Briefly, an employee may be entitled to SPL on adoption if an adoption agency has placed a child with the employee and/or the employee’s partner for adoption and the employee intends to share the main responsibility for the care of the child with his or her partner.
Entitlement to shared parental leave - birth
The following people are entitled to SPL in relation to the birth of a child:
- the child's mother, where she shares the main responsibility for the care of the child with the child's father (or her partner, if the father is not her partner);
- the child's father if he shares the main responsibility for the care of the child with the child's mother; or
- if the child’s father does not share the main responsibility for the care of the child with the mother, but the mother’s partner does so, the mother's partner.
The following conditions must also be fulfilled:
- the parent seeking SPL (including the mother) must have at least 26 weeks’ continuous employment with the employer by the end of the Qualifying Week, and must still be employed by the employer in the week before the leave is to be taken;
- the other parent must have worked (in an employed or self-employed capacity) in at least 26 of the 66 weeks before the EWC and had average weekly earnings of at least £30 during 13 of those weeks; and
- both co-parents must give the necessary statutory notices and declarations as summarised below, including notice to end any periods of maternity leave, statutory maternity pay (‘SMP’) or maternity allowance (‘MA’).
The total amount of SPL available is 52 weeks, less the weeks spent by the child's mother on maternity leave (or the weeks in which the mother has been in receipt of SMP or MA if she is not entitled to maternity leave).
A mother cannot start SPL until after the compulsory maternity leave period, which lasts until two weeks after birth (or four weeks for factory workers).
The child's father or the mother's partner may wish to consider using his or her two weeks' paternity leave before taking SPL. SPL entitlement is additional to paternity leave entitlement, but any outstanding paternity leave will be lost once SPL has been started.
Opting in to shared parental leave and pay
Not less than eight weeks before the intended start date of SPL, an employee must give to their employer a written opt-in notice that includes:
- the employee’s name and the name of the other parent;
- if the employee is the child's mother, the start and end dates of her maternity leave;
- if the employee is the child's father or the mother's partner, the start and end dates of the mother's maternity leave, or if she is not entitled to maternity leave, the start and end dates of any SMP or MA period;
- the total SPL available, which is 52 weeks minus the number of weeks' maternity leave, SMP or MA period taken or to be taken;
- how many weeks of the available SPL will be allocated to the employee and how many to the other parent (employees can change the allocation by giving a further written notice, and do not have to use their full allocation);
- if the employee is claiming statutory shared parental pay (‘SSPP’), the total SSPP available, which is 39 weeks minus the number of weeks of the SMP or MA period taken or to be taken;
- how many weeks of available SSPP will be allocated to the employee and how much to the other parent (employees can change the allocation by giving a further written notice, and do not have to use their full allocation);
- an indication of the pattern of leave they are thinking of taking, including suggested start and end dates for each period of leave. This indication will not be binding at this stage; and
- declarations by the employee and the other parent that they both meet the statutory conditions to enable them to take SPL and SSPP.
Ending maternity leave - curtailment notices and opt-in notices
If the child's mother wants to opt into the SPL scheme, she must give at least eight weeks' written notice to end her maternity leave (a curtailment notice) before she can take SPL. The notice must state the date her maternity leave will end. She can give the notice before or after she gives birth, but she cannot end her maternity leave until at least two weeks after birth.
At the same time, she must also give a notice to opt into the SPL scheme or a written declaration that her co-parent has given his/her employer an opt-in notice and that the mother has given the necessary declarations in the co-parent’s notice.
The other parent may be eligible to take SPL from their employer before the woman’s maternity leave ends, provided the woman has given the curtailment notice.
The curtailment notice is binding and cannot usually be revoked unless maternity leave has not yet ended and certain conditions apply.
Once a woman has revoked a curtailment notice she will be unable to opt back into the SPL scheme, unless certain circumstances apply.
When the co-parent can take shared parental leave
An employee who is not the mother will only be able to take SPL once the mother has either:
- returned to work;
- given her employer a curtailment notice to end her maternity leave;
- given her employer a curtailment notice to end her SMP (if she is entitled to SMP but not maternity leave); or
- given the benefits office a curtailment notice to end her MA (if she is not entitled to maternity leave or SMP).
Notifying the employer of shared parental leave dates - period of leave notices
Having opted into the SPL system an employee will need to give a period of leave notice telling the employer the start and end dates of the leave. This can be given at the same time as the opt-in notice, or it can be given later, as long as it is given at least eight weeks before the start of the leave. The employee must also state in the period of leave notice the dates on which he or she intends to claim SSPP, if applicable.
If the period of leave notice gives dates for a single continuous block of SPL the employee will be entitled to take the leave set out in the notice. The employer may not decline the request provided that the correct notifications have been given.
The employee can give up to three period of leave notices. This may enable employees to take up to three separate blocks of SPL. Employers may decide to allow employees to give more than three period of leave notices, but there is no obligation for them to do so.
Procedure for requesting split periods of shared parental leave
In general, an employee should ask for a single continuous block of leave and should give the notice at least eight weeks before the requested start date. Employers may decide that they will give consideration to period of leave notices where the SPL is split into shorter periods (of at least a week) with periods of work in between, although they are not obliged to do so. If they do, offer this flexibility they should consider setting out in a policy their expectations as to how an employee would apply, encouraging early notification so that the employer has time to consider whether it can make suitable arrangements.
If the employee makes a request for split periods and the employer is unable to agree to the request straight away, there will be a two-week discussion period. At the end of that period, the employer should confirm any agreed arrangements in writing.
If agreement is not reached the employee will be entitled to take the full amount of requested SPL as one continuous block, starting on the start date given in the notice. For example, if the employee requested three separate periods of leave of four weeks each, they will be combined into one 12-week period. Alternatively, the employee may within specified time limits:
- choose a new start date; or
- withdraw the period of leave notice (in which case it will not be counted and the employee may submit a new one).
Changing the dates of or cancelling shared parental leave
An employee may on eight weeks’ notice:
- cancel a period of leave;
- change the start date for a period of leave, or the length of the leave;
- change the end date for a period of leave;
- combine split periods of leave into a single continuous period of leave; and/or
- request that a continuous period of leave be split into two or more discontinuous periods with periods of work in between.
A notice to change or cancel a period of leave will normally count as one of the employee’s three period of leave notices.
Shared parental pay (‘SSPP’)
SSPP of up to 39 weeks (less any weeks of SMP or MA claimed by the mother) may be available provided the employee has at least 26 weeks' continuous employment with the employer at the end of the Qualifying Week and average earnings not less than the lower earnings limit set by the government each tax year. SSPP is paid at a rate set by the government each year (currently £138.18 but likely to increase in 2014/15).
Employers will also need to give thought to the circumstances in which they will enhance pay to employees taking SPL (see the separate note on this subject).
Other terms during shared parental leave
An employee’s terms and conditions of employment remain in force during SPL, except for the terms relating to pay.
Annual leave entitlement will continue to accrue at the rate provided under the employment contract. If SPL will continue into the next holiday year, the employee should be permitted to carry over any holiday entitlement that cannot reasonably be taken before starting the leave. The employer might want to stipulate that carried over leave must be taken immediately before returning to work unless the employer agrees otherwise.
Employers should continue to make pension contributions for members of the pension scheme during any period of paid SPL, based on normal salary, in accordance with the pension scheme rules. Any employee contributions the employee makes will be based on the amount of any SSPP the employee is receiving, unless the employee wishes to make up the shortfall.
Keeping in touch
Employers are entitled to maintain reasonable contact with employees during SPL. This may include matters such as contacting the employee to discuss developments in the workplace or arrangements for the employee’s return to work.
The employee may ask or be asked to work or attend training on up to 20 ‘SPLIT’ (‘shared parental leave in touch’) days during SPL. This is in addition to any KIT days that the employee may have taken during maternity leave. SPLIT days are not compulsory and should be discussed between the employee and the employer.
Employers should make clear the pay arrangements that will apply during KIT days. Some employers may wish to offer time off in lieu as an alternative to pay.
Returning to work
An employee who wants to end a period of SPL early must give the employer eight weeks' written notice of the new return date. If the employee has already given three period of leave notices he or she will not be able to end SPL early without the employer’s agreement.
If an employee wants to extend SPL and has unused SPL entitlement remaining, he or she must give the employer a written period of leave notice at least eight weeks before the original return date. If the employee has already given three period of leave notices he or she will not be able to extend SPL without the employer’s agreement, but may instead be able to request annual leave or ordinary parental leave.
An employee is normally entitled to return to work in the position he or she held before starting SPL, and on the same terms of employment. However, if it is not reasonably practicable for the employer to allow the employee to return to the same position, the employer may give the employee another suitable and appropriate job on terms and conditions that are not less favourable, but only in the following circumstances:
- if the SPL and any maternity or paternity leave the employee has taken adds up to more than 26 weeks in total (whether or not taken consecutively); or
- if the employee took SPL consecutively with more than four weeks of ordinary parental leave.
An employee who does not want to return to work should give notice of resignation in accordance with the contract of employment.