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Shared Parental Leave Overview

This fact sheet summarises the main rights to take Shared Parental Leave.

The following abbreviations/definitions are used in this fact sheet:

EWC                 Expected Week of Childbirth - the week, starting on a Sunday, in which the doctor or midwife expects the mother to give birth.

ShPP                 Statutory shared parental pay.

SMP                  Statutory Maternity Pay

SAP                   Statutory Adoption Pay

MA                    Maternity Allowance

Parent               One of two people who will share the main responsibility for the child's upbringing (either the mother, father or mother's Partner).

Partner             A spouse, civil partner or someone living with the individual in an enduring family relationship but not their sibling, child, parent, grandparent, grandchild, aunt, uncle, niece or nephew.

QW                   Qualifying Week – in birth cases, the 15th week before the EWC, and in adoption cases, the week in which the employee was notified by the adoption agency as having been matched with a child.

The Right

SPL is intended to allow families to have more flexibility when it comes to caring for their child in its first year following birth, or placement for adoption.

For babies expected to be born or placed for adoption from 5 April 2015 this replaces the provisions on Additional Paternity Leave and Pay, which will no longer apply.

For all mothers/primary carers in adoption, maternity/adoption leave remains the default entitlement. However, parents can opt in to SPL, if they and their partner meet certain requirements. SPL is an arrangement where maternity or adoption leave is brought to an end early and the unused leave can then be taken by either parent either separately or concurrently, in order to care for a child within the first year of its life or within the first year after placement for adoption.

The total amount of SPL available is 52 weeks, less any weeks of maternity leave or adoption leave which either parent has taken and less any other weeks in which SMP, MA or SAP has been paid, or is due to be paid.

Any time spent on paternity leave is a separate entitlement and will not be deducted from the 52 weeks of leave available.

Where employees and their partners meet the requirements for SPL they may be able to take periods of leave together, or swap between them or simply one parent may take this leave. Employees may also be able to take more than one continuous block of leave.

There is no obligation on employees to take SPL, and this does not alter the entitlements to other forms of parental rights. The default position on the birth or adoption of a child will remain maternity leave or adoption leave. This will continue to apply, subject to meeting the requirements for these entitlements, unless employees actively decide to opt in to SPL.

For further guidance on other parental rights available then please refer to the factsheets below:

Maternity Leave and Pay Factsheet [FS11.02]

Paternity Leave and Pay Factsheet [FS13.02]

Adoption Leave and Pay Factsheet [FS14.02]

Parental Leave Factsheet [FS23.02]

The minimum period of SPL that can be taken is one week and SPL must be taken in blocks of complete weeks.

Eligibility

SPL is an entitlement for employees only and does not apply to agency workers or self employed contractors.

Both Parents must be “economically active” (see below), but they do not both need to be employees. However, only employees can actually take SPL.

To be eligible for SPL, the employee must be the mother, the father of the child, or the mother's Partner, and they must share the main responsibility for the care of the child. Either the employee or their Partner must qualify for statutory maternity leave, statutory maternity pay or maternity allowance (see Maternity Leave and Pay Factsheet [FS11.02]).

In relation to the adoption of a child, an employee will be entitled to SPL if an adoption agency has placed a child with them or their Partner and they intend to share the main responsibility for the care of the child. Either the employee or their Partner must qualify for statutory adoption leave and/or statutory adoption pay and must take at least two weeks of adoption leave and/or pay.

In relation to the birth or adoption of a child, the following conditions must also be satisfied by employees seeking to take SPL:

  1. the employee must have at least 26 weeks continuous employment by the end of the QW, and still be employed by the same employer in the week before the leave is to be taken;
  2. the other Parent must be economically active, i.e. have worked in at least 26 of the 66 weeks before the EWC in relation to the birth of a child or the QW in relation to an adoption and have had average weekly earnings of at least £30 during 13 of those weeks; and
  3. both Parents must give the necessary statutory notices and declarations as summarised below.

Notification to take SPL

As SPL is an opt-in right, an employee needs to exercise the right to take SPL by serving notices to their employer. As set out above, the default position will still be maternity/adoption leave and pay or MA unless the employee chooses to bring this to an end early and opt in to the SPL scheme instead.

Curtailment Notice – for mothers/primary adopters

The mother/primary adopter will therefore need to provide their employer with a “curtailment notice” confirming their wish to bring their maternity/adoption leave and/or SMP/SAP/MA to an end early, and on what date. The curtailment notice must be submitted at least 8 weeks before the intended start date of SPL. At the same time as serving the curtailment notice, the employee must either submit a Notice of Entitlement and Intention to take SPL (see below) or a declaration that their Partner has served such a notice on his/her employer.

The curtailment notice will usually be binding, unless in specific circumstances.

Please see Mother or Primary Adopter Curtailment Notice [TP24.01].

Where the employee wishing to take SPL is the Partner of the person taking maternity/adoption leave:

The employee does not need to issue a curtailment notice to their employer, but SPL cannot commence until their Partner has either:

  1. returned to work; or
  2. given their employer a curtailment notice to end their maternity/adoption leave; or
  3. given their employer a curtailment notice to end their SMP/SAP (if relevant); or
  4. given DWP a curtailment notice to end her MA (if relevant).

All employees:

Where an employee wishes to take SPL they will need to provide their employer with, at least 8 weeks before their SPL commences, a Notice of Entitlement and Intention to take SPL and a Period of Leave Notice. These notices do not have to be provided at the same time, provided that both are received not less than 8 weeks before the SPL starts.

Please see:

Shared Parental Leave and Pay Factsheet [FS24.02]

Notice of Entitlement and Intention to take SPL [TP24.02]

Letter Acknowledging Notice of Entitlement and Intention to take SPL [SL24.02]

Period of Leave Notice [TP24.03]

Letter acknowledging Period of Leave Notice [SL24.03]

Letter to invite employee to meeting to discuss request for discontinuous leave [SL24.04]

Letter rejecting request for discontinuous leave [SL24.05]

Changing or cancelling SPL

Once a Period of Leave Notice has been given to the employer, the shared parental leave is effectively “booked” and an employee can only cancel, change the start date, or change the length of a period of leave by providing notification in writing at least eight weeks before the planned start date stated in the Period of Leave Notice.

Employees can also amend their SPL end date by providing written notification at least eight weeks before the original end date and the new end date.

A notice to change or cancel a period of Shared Parental Leave after a Period of Leave Notice has been served will count as one of the maximum of three Period of Leave Notices allowed, unless:

  1. the variation is as a result of the child being born or placed for adoption earlier or later than the EWC or expected placement date; or
  2. the variation is at the request of the employer; or
  3. the employer and the employee agree otherwise.

Rights During SPL

Terms and Conditions of Employment

All terms and conditions of employment will remain in force during SPL, and the employee remain entitled to receive all contractual benefits, except for salary/remuneration.  

Annual leave entitlement will continue to accrue at the normal rate.

Pensions

For employees who are a member of a pension scheme, employers are required to make employer pension contributions during any period of paid SPL, based on normal salary, in accordance with the pension scheme rules. Any employee contributions will be based on the amount of any ShPP the employee receives.

Contact during SPL

Employers are entitled to maintain reasonable contact with employees on SPL. This may be to discuss plan for return to work or to update on any developments at work during the absence.

Keeping in Touch Days

During a period of SPL, an employee may agree to work for up to a maximum of twenty days without that work bringing SPL to an end and without loss of a week’s ShPP.  These are known as ‘keeping in touch’ (KIT) days. See Parental Leave and Pay Factsheet [FS23.02] for more information.

Redundancy during SPL

In relation to redundancy generally, see Redundancy Overview [FS8.01].

If a redundancy situation arises, an employee on SPL has the same rights in terms of an offer of suitable alternative employment as those employees on maternity or adoption leave. See Maternity Leave and Pay Factsheet [FS11.02] for further details.

Rights on and after return to work

Employees on SPL have the right to return to the same job for which they were employed prior to taking SPL and on the same terms and conditions of employment if they have taken no more than 26 weeks of leave, whether this comprised of maternity leave or adoption leave or SPL. Employees who return to work after a longer period of absence also have the right to return to the same job, or where this is not reasonably practicable, to another job which is suitable and appropriate, on no less favourable terms and conditions.

An employee returning to work from SPL may make a flexible working request. See Flexible Working Overview [FS9.01]

Protection against unfair treatment or dismissal

Employees are protected from being subjected to a detriment:

  • for taking or seeking to take SPL; or
  • as a result of the employer believing the employee would take or seek to take SPL; or
  • for any reason in connection with work permitted during SPL.

Any dismissal where the principal reason was as a result of an employee taking or seeking to take SPL, or as a result of the employer believing the employee would do so, or where the employee was selected for redundancy for one of those reasons, will be automatically unfair.

Shared Parental Pay (ShPP)

Employees and their Partner may be able to claim up to 39 weeks of ShPP between them (less any weeks of statutory maternity/adoption pay or maternity allowance received or planned to be received) if they meet the eligibility requirements.

To qualify for ShPP, employees must:

  • have been employed for at least 26 weeks by the end of the QW;
  • have average earnings which exceed the lower earnings limit;
  • remain in employment with the employer between the QW and the week before SPL starts; and
  • their Partner must meet the “economically active” test (see above).

ShPP is paid at the current statutory rate, or 90% of normal weekly earnings, whichever is the lower. See Statutory Rates and Limits Table.

ShPP is subject to the usual Income Tax and National Insurance deductions.

Subject to certain exceptions, employers may recover 92% of the amount of ShPP paid to an employee by making one or more deductions from their Class 1 National Insurance contributions. 

A ‘small employer’ (defined as an employer whose total National Insurance contributions for the qualifying tax year do not exceed £45,000) may recover the full amount of ShPP, plus 3% in compensation for the employer’s National Insurance contributions.  This is recovered by deducting the ShPP paid from the Class 1 National Insurance contributions.  Employers who need to can also receive funding in advance for payments of ShPP from HM Revenue & Customs.

Avoiding discrimination regarding enhanced company ShPP

There is no statutory requirement to offer enhanced company ShPP, even where employers offer enhanced maternity pay to female employees. However, there is a risk that a failure to provide equivalent enhanced benefits may constitute sex discrimination and this will be for Employment Tribunals to decide. At present there is conflicting case law on this point and therefore we recommend that legal advice is sought if you currently enhance maternity pay but do not propose to extend this to ShPP.

This document has been created by, or on behalf of ESP Ltd, as a general document and as a guide in relation to its subject matter and has not been bespoke drafted for you or the specific circumstances in which you are looking to use it. Prior to using this document and undertaking any HR process you must consult your organisation’s own policies and procedures to ensure that you do not do anything in conflict with your own policies and procedures.  If in any doubt as to how to use this document or, if you require any legal advice, please feel free to contact ESP Ltd on 0333 006 2929 and our legal team will be more than happy to assist.  ESP Ltd will not be liable in any way for any actions undertaken by you or your use of this document unless we have been consulted regarding your use of this document as legal advisor to your business or have bespoke drafted any documentation in response to a specific support request.