The new Shared Parental Leave (SPL) regulations provide an opportunity for parents to take advantage of additional flexibility in the way they choose to care for their new child (whether birth or adoption).
SPL is a new legal entitlement for eligible parents of babies due, or children placed for adoption, on or after 5 April 2015.
SPL enables parents to share the caring responsibilities evenly or have one parent taking the main caring role, depending on their preferences and circumstances.
Unlike maternity/adoption leave, eligible employees can stop and start their SPL and return to work between periods of leave with each eligible parent able to submit three notices booking periods of leave (although an employer may allow more).
In their 2010 election manifestos, both the Conservative and Liberal Democrat parties promised to introduce a more flexible system for both parents to take leave on the birth or adoption of a child. Following the election, this commitment was reflected in the coalition agreement between the two parties.
The outgoing Labour government had previously introduced the system of Additional Paternity Leave in April 2011 which allowed part of the mother’s unused entitlement to leave could be used by the partner. However, this has proved unpopular and too inflexible, requiring the mother to return to work and abandon her right to further leave, before the partner can take Additional Paternity Leave. The BBC reported in 2013 that only about 0.6% of eligible employees have taken advantage of it.
SPL will comprise of 50 weeks of leave and 37 weeks of statutory Shared Parental Pay, which can be shared between eligible parents. Unlike the current maternity and adoption leave system, SPL can be taken either as a continuous period or at different times throughout the year, in multiples of complete weeks.
Parents can also opt to take SPL consecutively or concurrently, giving them the option to take more time off together than the current two weeks allowed by statutory paternity leave.
Importantly, SPL will not replace current maternity, adoption and statutory paternity leave. SPL is optional for parents and intended to give working families more flexibility and choices over when they take leave during the first year of their child’s life or adoption and who takes that leave, allowing parents to be on leave at the same time if they wish.
The new scheme does not replace the maternity or adoption leave entitlements of 52 weeks’ leave (39 weeks paid and 13 unpaid). The two week compulsory maternity leave period immediately following the birth of a child or adoption placement will also remain in place. The current two weeks of statutory paternity leave will remain available, meaning that parents can still choose to take leave following a birth or adoption placement in line with the current system. Fathers or partners may take both the two weeks’ statutory paternity leave and SPL if they wish.
To qualify for SPL, a parent must satisfy the following criteria:
» They must have been continuously employed by their employer for at least 26 weeks by (i) the end of the 15th week before the child’s due date or (ii) the week of the adoption placement, and remain in employment until the week before any period of SPL is due to start
» They must share the main responsibility for the care of the child with the other parent (i.e. the child’s father or partner)
» The other parent also needs to satisfy an “employment and earnings test” by (i) having worked, as an employee or self-employed earner in Great Britain, for at least 26 weeks of the period of 66 weeks leading up to the due date of childbirth or placement for adoption and (ii) having average weekly earnings of not less than £30 per week in 13 of those 66 weeks. This is a low threshold to meet.
To qualify for Shared Parental Pay, the employee must:
» Meet the qualifying requirements for SPL and have a partner who meets the employment and earnings test (see above); and
» Have earned not less than the lower earnings limit (currently £111 per week) for the eight weeks up to (i) the end of the 15th week before the child’s due date or (ii) the week of the placement for adoption
You will note that this is the same test as the current test for Statutory Maternity Pay, Statutory Adoption Pay or Statutory Paternity Pay.
An employee must give his or her employer at least eight weeks’ notice to take a period of SPL, but there are a number of different notices that employees must give and the rules are complex.
Before either parent can take SPL, the mother must give her employer a leave curtailment notice, setting out the date on which she intends to bring her maternity leave to an end. This must be given no more than eight weeks before the start of the first period of shared parental leave taken by either of the parents.
At the same time, the mother must give her employer:
» A notice of entitlement and intention to take SPL, providing the employer with information including how much SPL the parents each intend to take and an indication as to when the mother intends to take leave (which is non-binding); or
» A declaration stating that her partner has given his or her employer a notice of entitlement and intention to take SPL and that she consents to her partner taking that amount of leave.
These regulations are already in force and they affect eligible parents of babies due, or children placed for adoption, on or after 5 April 2015.
To ensure consistency in making and responding to notifications regarding SPL it is a good idea for employers to set out the working arrangements and the employee’s rights in a well drafted policy. It can be a stand-alone policy, which refers to and interacts with other family friendly policies, or it could be included within a wider maternity and paternity policy.
If you have a recognised Trade Union, then you may need to negotiate the wording and implementation of this new policy with them.
This is a complex piece of legislation and we would strongly advise you take advice to ensure you comply with complex rules and procedures. With time we are confident that employers will get used to the new system – but we are expecting the new regulations to cause a few headaches for employers in the short term.
For further information on this or any other employment issues please contact us on 0333 006 2929 or email email@example.com.
This has been drafted on ESP’s behalf by Ward Hadaway Law Firm. Ward Hadaway Law Firm are one of ESP’s strategic legal advisory partners and provide certain services to our customer through a range of different Legal and HR support services offered by ourselves to the Corporate market.
The content of this post does not constitute legal advice and it should not be relied upon. Specific legal advice may be required to address your specific circumstance.