Shared Parental Leave

The statutory provisions with regard to Share Parental Leave (SPL), introduced by the Children and Families Act 2014, are due to come into force in December 2014 and will apply in relation to children whose expected week of childbirth (EWC), or placement for adoption is on or after the 5th April 2015. Ironically, this is now less than nine months away.

So, as this latest offering in family friendly rights creeps ever closer, it is important that employers consider what the implementation of this ultra modern policy will mean for them. After all, the babies that will give rise to this shared right may already be on their way!

The Right. 

The new scheme will make up to 50 weeks of SPL and 37 weeks of Shared Parental Pay (ShPP) available for eligible parents to share. Why only 50? Well, that is what is left when you deduct the usual two week compulsory maternity leave and pay period, which is expected to remain compulsory.

The leave can be shared in various ways, provided that the total time taken does not exceed what is jointly available to the couple. So for example, both parents can be on SPL together, or consecutively. However, SPL must be taken in multiples of complete weeks, with a minimum period of one week.

The right also exists in addition to ordinary paternity leave. So new fathers (or adopters) will still be eligible to their 2 weeks leave within 56 days of birth, regardless of whether they also intend to take SPL. The current right to additional paternity leave however, will be abolished.

Who will be eligible? 

According to the current version of the Shared Parental Leave Regulations, which have been laid before Parliament, an employee wishing to take SPL must have 26 weeks continuity of employment at the end of the 15th week before the EWC, as per the current arrangements for statutory maternity leave.

They must have main responsibility for care of the child (together with the person with whom the leave will be shared) and be eligible for statutory maternity leave or, if they are the partner, the mother must be eligible for statutory maternity leave, statutory maternity pay or maternity allowance.

Their partner (i.e. the person with whom they intend to share the SPL with), must, if they are not currently employed, have worked on an employed or self-employed basis for 26 of the last 66 weeks, earning an average of at least £30 per week for 13 of those weeks.

Procedure

As you might expect given the eligibility criteria, the procedure to be followed is complicated, involves co-operation between the parties and requires various formal notices to be given at various times, potentially to two different employers. A real HR headache! No less than 3 notices are required to be served – a curtailment of leave notice, a notice of entitlement and intention and a period of leave notice. If the couple decide to vary their leave, this can be done up to three times, meaning that up to three period of leave notices may be served on each employer.

Issues for Employers

So what to do when you receive notice and how do you know that the information it contains is accurate?

Well, the employee will be required to make various declarations in their notice, including the EWC, how much leave or pay they are entitled to, their partner’s national insurance number and how the couple intend to take the SPL. Employees are not however obliged to provide employers with the contact details for their partner’s employer, or the child’s birth certificate, unless the employer serves a written request within 14 days. There is also no duty on employers to co-operate with each other in order to validate details of individual entitlement and indeed the data protection act is likely to prevent them from doing so, in the absence of employee consent.

Secondly, while an employer cannot refuse a request for SPL where the request is for a continuous period of leave, they are entitled to refuse a request for discontinuous periods provided the request is refused within 2 weeks of being made.  This raises questions as to how employers will justify the reason for refusal. While a flat “no” may be permissible under the Regulations, it has the potential to cause issues from an employee relations point of view, particularly in the absence of a policy which says as much.

What happens if the baby arrives early? Or the employee changes their mind regarding how SPL and ShPP will be shared? Or worse, the partner with whom they have shared their leave and pay with dies?

Then there is the potential for conflict between the statutory right and any enhanced rights under an employee’s contact of employment.  The list of potential issues goes on.

It seems as always that the key to success will be a robust policy and employers would be well advised to get this in place before April 2015 and indeed before the notices of intention start landing on HR department desks in the weeks before. In addition, employers will need to amend their existing policies on maternity, paternity and adoption in order to bring them in line with the new regime.

For more information, help or advice give us a call on 0808 1685780