Shared parental leave and pay

Heralded as a revolution in family friendly rights, parents of children born or adopted after 5 April, are now entitled to take Shared Parental Leave (SPL).  The new regime gives both parents the opportunity to share up to 50 weeks of leave, with just the first two compulsory weeks after childbirth given over exclusively to the mother.  In addition, 37 weeks of statutory Shared Parental Pay (SPP) will also be available to be shared between parents, at the lower rate of Statutory Maternity Pay (currently £139.58), or 90 per cent of actual pay if that is lower.

Who is eligible for shared parental leave?

The rules are complicated and the following is an outline summary. The mother (or adopter) must be eligible for maternity/adoption leave or pay or maternity allowance. The father, partner or other adopter will qualify if they are an employee and have worked continuously for at least 26 weeks by the end of the 15th week before the due date (or date they are matched with their adopted child). Mirroring the rights of those on maternity leave they will still be employed while they take leave and will be entitled to return to their original jobs in most cases.  Employees can exercise the right as long as they give the correct notice including a declaration that their partner meets the employment and income requirements which allow your employee to get shared parental leave/pay.

For SPL to start, the mother or adopter must do one of the following:

  • end their maternity or adoption leave by returning to work
  • give binding notice’ (a decision that can’t normally be changed) of the date when they’ll end their maternity or adoption leave
  • end maternity pay or Maternity Allowance (if they’re not entitled to maternity leave, e.g. they’re an agency worker or self-employed)

The mother must give notice (at least eight weeks) to end her maternity leave and pay, or for Jobcentre Plus to end her Maternity Allowance. Likewise adoptive parents must give notice to end adoption pay. SPL can start for the partner while the mother or adopter is still on maternity or adoption leave if she’s given binding notice to end her leave (or pay if she’s not entitled to leave) which means both parents can take leave together, which can be continued by both opting to take SPL too as long as the total leave does not exceed 52 weeks.

What is the likely impact on SMEs?

The new regime will be a worry to many businesses concerned about covering absences and the associated costs. Employees are only required to give eight weeks’ notice of their intention to take SPL and a request from a father / partner may come out of the blue in comparison to a similar request from a pregnant woman.  This makes it harder to plan for the individual’s absence and make necessary arrangements to cover their role.

Fathers can decide to take leave in one block or can take a number of smaller blocks of leave.  This creates further uncertainty for employers who may find it harder to cover smaller periods of absence.  The process is complex and the administrative burden is heightened by the fact that employers must factor in dealing with a non-employee i.e. the mother who has qualified for maternity leave and/or pay.

How much of an effect the new regulations will have on business in practice remains to be seen and much will depend on how many fathers decide to take up the option of extended time at home. Recent surveys suggest there is an appetite amongst fathers keen to take up SPL but many are put off, concerned about the financial implications and the potential impact on their careers.

Can I turn down a request for SPL?

Employers can decline requests for more than one block of leave, e.g. two months off, returning for a month, then taking a further month off, then returning for two months and then taking a further month off.

That said, employees have the right to make up to three separate requests for SPL, so the above pattern could be achieved by the employee making three different requests for continuous periods of two months, one month and one month, provided he/she did so on at least eight weeks’ notice on each occasion.

We offer enhanced maternity pay.  Do we have to offer the same to new fathers?

There have been concerns voiced by businesses who fear they may open themselves up to discrimination claims if they do not offer the same terms to new fathers.  ACAS guidance however, makes it clear that if an employer offers enhanced maternity and adoption pay, there is no requirement to replicate this for shared parental pay. In other words, it will not be discriminatory to treat these two types of leave differently as long as the same approach is applied to men and women. It seems unlikely although not impossible therefore, that an Employment Tribunal would choose not to follow the government’s own guidance.  It could be challenged as indirectly discriminatory against men as more men than women are likely to take SPL.  Is this something we may see in the European courts in years to come?

Will fathers taking SPL accrue holiday?

Yes, in the same way as employees on maternity leave do, fathers taking SPL will accrue holiday in their absence.  While this will not be a big deal if they are taking off small chunks of time, over six months this may add up to an entitlement of up to 20 days in some cases.  I would advise putting clauses in your parental leave policy that stipulate employees must take all remaining holiday before returning to work in order to avoid further disruption cause by employees returning with large amounts of holiday still to take.  All other benefits (other than remuneration) will also continue.

What can I do in practical terms to prepare for any future requests?

You need to be informed about the changes and ensure that you draft an appropriate SPL policy to deal with requests so that you can ensure they are handled lawfully.  Employers should encourage open discussions about new parents’ plans so that they can get advance warning about any potential leave and negotiate, rather than reject requests, where possible.