Shared Parental Leave

On 5^th April, the much discussed Shared Parental Leave (SPL) scheme will become a live issue for employers to deal with. The concept of SPL is itself relatively straightforward: one parent can choose to end their maternity or adoption leave and share the remaining available leave with their partner. The legislation appears less straightforward as there are various requirements and processes to be followed. As the provisions apply to children born or placed for adoption on or after the 5^th April 2015, employees may now starting looking to take SPL and it will be helpful for employers to be aware of the provisions. This blog will cover some key points to be aware of in terms entitlement and requirements, as well as some practical points for consideration.

Entitlement

SPL is essentially a further type of optional family related leave, which is intended to complement existing statutory rights such as maternity leave, adoption leave and paternity leave.  The only current right which will be abolished is Additional Paternity Leave, which will no longer be available in respect of children born from 5^th April. Those who would have taken such leave can generally take SPL instead, which gives largely the same rights but on a more flexible basis.

To take SPL, both parents have to meet certain conditions for either of them to be eligible. Essentially, a mother or primary adopter will qualify if they are entitled to statutory maternity or adoption leave. They must have been continuously employed for 26 weeks in the 15^th  week prior to the expected week of childbirth or placement. However, their partner must also meet what is known as the ‘employment and earnings’ test, which is set out in the regulations.

While on SPL, parents are entitled, subject to certain eligibility criteria, to receive Statutory Shared Parental Pay (ShPP). This will be at the rate of 90% of normal weekly earnings or the statutory prescribed rate, whichever is lower. While employees who qualify for statutory maternity, paternity or adoption pay are likely to qualify for ShPP, there are again conditions which must be met by their partner.

The maximum SPL available is 52 weeks, with ShPP available for 39 weeks. Any maternity or adoption leave taken must be deducted from this, with the balance being available to share between partners. As a mother must take two weeks compulsory maternity leave, in birth cases the entitlement to SPL is effectively 50 weeks. A father or partner can also take 2 weeks ordinary paternity leave, which will not reduce or impact upon the amount of SPL available.

Taking SPL

SPL must be taken within one year of the birth or placement of the child, otherwise the entitlement is lost. It is more flexible than other types of leave, as it allows parents to:

• take the leave in one continuous block;
• share it between them however they wish; and
• to take the leave in up to three separate blocks of a minimum of one week.

Examples of leave patterns could be as follows:

1. Following 2 weeks compulsory maternity leave, a mother chooses to take the following 25 weeks as SPL and her husband takes 25 weeks SPL at the same time.
2. A mother chooses to return to work after six weeks maternity leave and her partner then takes 46 weeks SPL.
3. An adopter takes 4 weeks adoption leave, while her partner takes 4 weeks SPL at the same time. Following a return to work for four weeks, they both take 4 weeks further SPL.
4. A father takes 2 weeks paternity leave. He then wishes to spend more time with his child, but not to take a continuous period away from work. He identifies a block of 12 weeks and takes off every second week in that period, thus taking 6 weeks SPL. This counts as one block of leave.

It should be noted that discontinuous blocks, where the SPL is not used in one single period of leave, are subject to the agreement of the employer. Requests for a continuous period of leave must be granted. However, following a request for discontinuous leave, the employer has a period of 2 weeks in which to consider it and choose to accept, reject or propose alternative arrangements.

The following notices should be given by employee and must be in writing:

• Curtailment notice: at least 8 weeks’ notice must be given of intention to end maternity leave or adoption leave. The notice should state the date such leave (and associated statutory pay) will end.

• Notice of entitlement and intention to take SPL: this should be given at least 8 weeks before the first period of SPL is intended to start. It may be given at the same time as the curtailment notice. It must contain certain information and a signed declaration by both parents. Such a notice is not considered to be binding unless it states otherwise.

• Period of leave notice: this may be given with a notice of intention or separately. It confirms the start and end dates for each period of leave requested. It must also be given at least 8 weeks prior to the intended start date. It may therefore be given separately where parents give early notice of their intention to take SPL, but wish to specify more precise dates at a later time.

The declaration to be signed by each parent must give both their names, details of their partner’s employer, confirmation of their eligibility for SPL and the accuracy of their information, a statement of the leave each will take and giving consent to their partner taking SPL and/or ShPP.  

Employees on SPL have similar rights to those taking other family leave in terms of their terms and conditions of employment being protected, the right to return to the same job and protection from dismissal or detriment for taking the leave. They can also work for up to 20 days without bringing the leave period to an end by taking what are referred to as “SPLIT” days (Shared Parental Leave In Touch).

Some practical considerations

It will be important to ensure that employees are aware of what is required should they wish to take SPL. Consideration should be given to updating staff handbooks or policies in this regard. In doing so, it may be worth considering how to implement these policies in practice.

Employees should be encouraged to discuss their intentions at as early a stage as possible in order to ensure that appropriate periods of leave can be agreed if they wish to take SPL in discontinuous blocks. One potential issue is that both parents’ employers must agree to the proposed leave pattern. If one employer refuses when notice has already been given, this creates more administration whereby employees have to seek to revoke or vary the notice. It would therefore be advantageous to remind employees to approach both employers for agreement before notice is given.

A further consideration may be whether enhanced maternity pay is extended to cover ShPP. We previously noted the potential for discrimination issues in this regard in our blog on Additional Paternity Leave and Discrimination, which highlighted the case of Shuter v Ford Motor Company. As we highlighted in that blog, there is the possibility that discrimination could be alleged where maternity pay is enhanced but ShPP is not. We also noted it is unlikely that providing enhanced maternity pay but not enhanced ShPP would be held directly discriminatory as the SPL provisions apply to men and women equally.

Where there is evidence that there may be an indirectly discriminatory effect upon men, future Tribunals may hold differently from Shuter given the fact specific nature of that case. Few employers are likely to have the heavily male dominated workforce of Ford, which required an enhanced maternity policy to recruit women, and fewer still are likely to be able to produce the evidence available to Ford showing that such a policy was successful. However, as SPL will also be available to women, it is possible that a male employee on SPL will not be able to establish the necessary comparator or group disadvantage to show indirect discrimination, as men and women on SPL would receive the same pay. However, this might be established if, in practice, it becomes the case that SPL is taken mostly by male employees. 

There is currently no obligation to enhance ShPP on the same basis as maternity pay, if enhanced pay is provided. Lack of enhanced pay has been cited as a key reason why so few fathers have historically taken additional paternity leave: less than 1% of those who are eligible actually do so. Enhancing pay for SPL could be beneficial for employers seeking to attract male employees in female dominated organisations or who wish to market themselves as family friendly.

However, it is not clear at the moment whether the uptake of SPL will be significant. The government forecast that only around 2% - 8% of eligible employees would take SPL. On the other hand, recent surveys have indicated that there may be more interest in SPL among employees than previously indicated. Towards the end of 2014, Linklaters carried out a survey of 250 employees within FTSE 100 companies and found that 63% of them were interested in the idea of taking SPL. Further, a BIS study reported in January 2015 found that approximately 83% of employees, if they became parents in future, would consider taking SPL. It also found that two thirds of those who already have children would have considered taking SPL had it been available to them at the time.

Nevertheless, it remains to be seen whether such interest will translate into employees actually taking such leave. On this basis, employers may wish to wait to make decisions on provisions such as enhanced pay until the level of uptake of SPL and its impact becomes clearer.

Contact our Employment Solicitors, Glasgow

This blog has covered some of the basic points relating to SPL and noted some practical considerations. Further information is available in online guides published by ACAS and by the government, as well as from our employment law team, who can assist with detailed advice on the implementation of shared parental leave, or any issues with this or other family related rights.