21/01/2016

Shared parental leave is a new legal right for eligible parents of babies due, or children placed for adoption, on or after 5 April 2015 to share the parenting of their children.

From April this year the mother of a baby will be able to convert part of her statutory maternity leave and statutory maternity pay entitlement into shared parental leave and shared parental pay. This also applies to adoptive parents and intended parents through surrogacy.

Parents are given the right to take shared parental leave and there is a duty on employers to ensure that employees are not penalised for using this right or put under pressure to cancel/change a leave notification.

SPL is designed to enable parents to share care responsibilities and employers need to familiarise themselves with leave notification arrangements and alter their HR processes, including family leave policies.

This is a completely new scheme and each employer needs to work out how they will implement the new rights within their existing policies and procedures.

How much leave can be taken?_

It is possible to convert up to 50 weeks of the full 52 week maternity and adoption leave entitlement into shared parental leave and up to 37 of the full 39 week statutory maternity or adoption pay into shared parental pay.

Shared parental leave and shared parental pay are available to two parents to share provided they satisfy the eligibility tests (below). A mother can reduce her maternity/adoption leave thereby allowing her partner to opt in to shared parental leave and take the remaining weeks as shared parental leave. The two parents can decide how to share the leave and pay between themselves. They can both be off work at the same time.

The leave must be taken before the child’s first birthday. A woman who gives birth cannot take shared parental leave until after her period of compulsory maternity leave ends (i.e. 2 weeks after birth or 4 weeks in the case of factory workers). Similarly an employee taking adoption leave must take at least 2 weeks of leave before he/she can switch to shared parental leave.

Shared parental leave can only be taken in complete weeks and must be taken using a minimum of three separate notices to book leave. Each notice to book shared parental leave can be for either a “continuous” block or multiple “discontinuous” blocks. Unlike maternity or adoption leave an eligible employee can stop or start their shared parental leave and return to work between periods of leave with each eligible parent able to submit a minimum of three periods of leave.

Who is eligible?_

An individual must be in a qualifying relationship and have the main responsibility for the care of the child. They must be:

• The child’s mother
• The child’s father
• Someone with whom the child is or is expected to be placed for adoption
• Married to or the civil partner of the child’s mother/adopter
• Living with the child and the child’s mother/adopter in an enduring family relationship

Continuity of employment test and employment and earnings test_

In addition a parent wanting to take shared parental leave must satisfy the “continuity of employment test” and their partner must meet the “employment and earnings test”.

To satisfy the continuity of employment test, the individual must have worked for the same employer for at least 26 weeks at the end of the 15^th week before the child’s expected due date/matching date and must still be working for the employer at the start of each leave period.

To meet the employment and earnings test, in the 66 weeks leading up to the baby’s expected due date/matching date the “partner” must have worked for at least 26 weeks and earned an average of at least £30 a week in any 13 weeks.

To qualify for shared parental pay an employee must satisfy the “normal weekly earnings” test. This is the same test as applies to eligibility for statutory maternity, adoption and paternity pay. The “other parent” (not the mother or person taking adoptive leave) must be eligible for statutory maternity or adoption pay or maternity allowance.

An individual’s average gross weekly pay must not be less than the lower earnings limit for National Insurance purposes.

If both parents are employees and both meet the qualifying requirements then there will be a joint entitlement and the parents will have to decide how to divide the leave entitlement once the mother has decided to curtail her maternity/adoption leave. The mother can share her leave with only one other person.

An employee must provide an employer with a declaration signed by the other parent to confirm they meet the eligibility criteria.

Rights during and after shared parental leave_

The same rules as apply to maternity, adoption and paternity leave apply – namely an employee will be entitled to benefit from all their existing terms and conditions of employment other than those relating to pay. Employers can obviously choose to pay more than the shared parental pay statutory minimum amount. Employers need to review any enhanced maternity policy to avoid discrimination claims.

Both parents will be allowed up to 20 optional keeping in touch days during each shared parental leave. During keep in touch days, employees can carry out work for the employer and may be paid for this.

Throughout shared parental leave employers should make reasonable contact with the employee to discuss arrangements for the employee’s return to work and to keep the employee informed of company developments, such as any training or promotion opportunities and vacancies which arise. Employers need to ensure there is reasonable contact in order to minimise the risk of unfavourable treatment claims.

An employee will have the right to return to the same job following shared parental leave. If the total amount of leave exceeds 26 weeks and it is not practical for the employee to return to the same job, the employer can give the employee a suitable role which is appropriate in all the circumstances on no less favourable terms and conditions.

Is shared parental leave suitable?_

Even those employees who are eligible for shared parental leave may find that other arrangements suit them better and should carefully consider which option would be most beneficial to their situation. For example, there may be a contractual entitlement with their employer to enhanced maternity pay, in which case it would make sense to take advantage of the enhanced maternity pay initially rather than shared parental leave.

If you’d like advice about how to amend your existing policies and procedures or how to implement a process to manage shared parental leave or shared parental pay requests please contact Nick Phillips, Employment & Commercial Partner at Beswicks Legal, on 01782 205000 or nick.phillips@beswicks.com.