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New guidance on Shared Parental Leave and Pay

02 October 2014 #Employment


BIS has published an Employers` Technical Guide to Shared Parental Leave and Pay The technical guide summarises the operation of the shared parental leave and pay scheme, considers a number of frequently asked questions and sets out worked examples. It covers some of the more technical aspects of the scheme that are not dealt with in detail in the main Shared parental leave and pay: employer guide on the GOV.UK site, such as the maternity leave curtailment rules..

This article provides a summary of key sections of the guide.

Shared parental leave (SPL)an eligible mother or adopter brings their maternity or adoption leave to an end early. The untaken weeks of maternity or adoption leave can be taken as shared parental leave if the mother/adopter or their partner is eligible for this – up to a maximum of 50 weeks.

Statutory shared parental pay (SPP) an eligible mother or adopter chooses to bring their maternity or adoption pay or maternity allowance to an end early – The untaken maternity or adoption pay or maternity allowance will become available as statutory shared parental pay – up to a maximum of 37 weeks.

One or both parents may qualify. It may be that only one of the parents will qualify for shared parental leave. However, if both parents meet the eligibility requirements, shared parental leave can be shared between the parents who can alternate periods of work and leave or be at home together.

In some families, both parents will be employed and meet the qualifying requirements for shared parental leave and pay. In these circumstances, the parents will need to decide how to divide the leave and pay entitlement between them. Leave or pay taken by one parent will reduce the pool of leave and pay that is available to the other parent

To whom is shared parental leave available? Shared parental leave and pay will be available to a birth mother and the child’s father or a mother’s or adopter’s partner. “Partner” means a person who the mother or adopter is married to or in a civil partnership with; or a partner who the mother or adopter is living with.

SPL is more flexible than maternity and paternity leave. Shared parental leave will enable working parents to share leave in the year after their child’s birth or placement for adoption and to take leave in a more flexible way. In contrast to maternity and paternity leave, eligible employees will be able to stop and start their shared parental leave and return to work between periods of leave.

Shared parental leave is designed to enable working parents to share leave and to take time off in a more flexible way. This will allow both parents to be at home together if this is what they choose.

Agency workers are entitled to statutory maternity pay or statutory paternity pay are not eligible shared parental leave but their employed partner may be. Agency workers and/or their partners may also be entitled to statutory shared parental pay.

Only an employee can take shared parental leave and employees and others classed as employed earners for Class1 national insurance liability such as agency workers can take statutory shared parental pay. For an employee to be eligible for shared parental leave or an employer or agency worker to be eligible for shared parental pay, both parents need to meet certain qualifying criteria.

SPL key qualifying conditions.

(a) Continuity of employment.

A parent taking the SPL must have 26 weeks continuous employment up to and including the 15th week before the week in which the baby is due to be born, and still be employed in the week before any shared parental leave is due to start.

The other parent (whether the mother or other parent) need only meet an “employment and earnings test” for the parent wanting to take SPL to qualify for shared parental leave. To meet this test, the other parent must have been an employed or self-employed earner in Great Britain for a total 26 weeks (not necessarily continuously) in the period of 66 weeks leading up to the week in which the child is due (or matched for adoption) and to have earned an average of £30 a week in 13 of those weeks (not necessarily continuously).

(b)  Shared main responsibility for the care of the child that the shared parental leave and pay relates to with the other parent  at the date of the child’s birth or placement for adoption.

Do both parents need to be employees?

No, only the parent taking the SPL. There are situations where only one parent will take leave from employment, as long as the other parent (who is not an employee) meets certain criteria. The government`s policy is that both parents must be economically active: where one parent seeks leave from employment, their partner must have worked in an employed or self-employed capacity in at least 26 of the 66 weeks immediately before the EWC or the week they were notified of the match, earning on average at least £30 a week based on any 13 of those weeks. This is the same as the test of economic activity for maternity allowance.

So, where a mother is an employee but the father is self-employed, or unemployed having recently lost his job, the father will not technically qualify for SPL or ShPP as he has no employer. However, because the father has been economically active, the mother is not restricted to taking maternity leave; she will be able to access the more flexible SPL scheme. This means she will be able to take part of her maternity leave, go back to work, and then take a further period or periods of SPL at a later date, up to 52 weeks after birth.

Alternatively, where a father is an employee, but the mother is self-employed or recently unemployed, the mother has no maternity leave or SPL entitlement herself, but will qualify for maternity allowance. By curtailing her entitlement to maternity allowance, the mother will be able to give the father access to the SPL scheme, meaning he can take a period or periods of SPL.

Checking eligibility. It is the employee’s responsibility to check they are eligible for shared parental leave and/or pay and they must give the employer a written declaration confirming that they are eligible. They must also provide a declaration from their partner that he or she meets the ‘employment and earnings test’ and consents to the employee taking shared parental leave and/or pay. The employer is not required to check or confirm the information given by the partner to determine whether your employee is eligible for shared parental leave and/or pay.

SPL may be taken in up to 3 blocks. Shared parental leave may be taken in a single continuous block, or may be taken in smaller blocks of leave (a minimum of a week at a time), interspersed with time at work (in contrast to maternity leave which has to be taken in a single continuous block).

Your employee needs to give you proper notice of any periods of shared parental leave and/or pay that they want to take. An employee can only give 3 notices to take leave, unless you agree to more.

There are no restrictions on the number of notices for statutory shared parental pay, but pay will usually be notified at the same time as leave. 

As an employer, you do not have to agree to lots of periods of leave – the maximum number of separate blocks of leave that your employee can take will be 3, unless you agree to more.

How much shared parental leave and pay the employee may take depends on when the mother or adopter curtails their maternity or adoption leave and pay or allowance. Shared parental leave is whatever remains of their 52 weeks of entitlement after returning to work or the date of the notice to curtail maternity or adoption leave and pay or maternity allowance. In essence, the untaken balance of any maternity or adoption leave can be taken as shared parental leave and the untaken balance of any maternity or adoption pay (or maternity allowance) can be taken as shared parental pay.

The maximum number of weeks of shared parental leave and pay that could be available to the parents jointly is 50 weeks of leave and 37 weeks of pay.  

Arrangements for ‘booking’ shared parental leave and pay. Once your employee has notified you of their etitlement to take shared parental leave, he or she will also have to submit a notice to “book” a period of leave. A notice to book leave must be given at least 8 weeks before leave can be taken. In many cases, a booking notice will be submitted at the same time as the notice of entitlement is submitted.

Your employee may only give you 3 notices to book leave or to vary a previously agreed pattern of leave.  However, if you want to, you can choose to accept more than 3 booking notices.  Each of the 3 notifications to book leave may notify a single, continuous block of leave or may request discontinuous periods of leave.

Leave arrangements that have been notified can be changed by means of a notice to vary the agreed leave. 8 weeks’ notice must be given. An employee can give notice to end a period of leave earlier or later than previously notified, or to aggregate a number of discontinuous weeks into a single block using a variation notice.

A notice to vary agreed leave counts towards the cap of 3 notifications to book leave (although you can agree to accept more notifications if you wish).

Practical steps for employers.

In preparation for these changes which are expected to come into force in December 2014 in respect of babies due or placed for adoption on or after 5 April,  employers should consider:

  • Prepare a shared parental leave policy, ensuring that any policy does not conflict with any diversity or equality policies in force. The buddy policy will be out soon.
  • Review your existing maternity pay policy.
  • Provide training to HR and managers highlighting the changes coming into force, and issues to think about when considering/agreeing SPL.
Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at employmentunit@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.

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